soverignity in theory and practice w.nagan

Sovereignty in Theory and Practice

WINSTON P. NAGAN*AITZA M. HADDAD**

TABLE OF CONTENTS

I. INTRODUCTION.........................................................430II. THE HISTORICAL CONTEXT................... ........................... 435

A. Jean Bodin and Sovereignty Theories in Context ..... ....... 438B. The Work and Contributions of Thomas Hobbes...........442C. The Work and Contributions of Hugo Grotius...........444D. The Treaty of Westphalia .................................446E. The Work and Contributions ofPufendorf and Vattel. ............. 447F. The Work and Contributions of Moser and Martens... ....... 449G. John Austin and the Theory of Sovereignty...............451

III. THE THEORY OF SOVEREIGNTY AND INTERNATIONAL LAW ................... 453A. Sovereignty and International Obligation After the

First World War...................... ................. 453B. Sovereignty and International Obligation After the

Second World War.......................... ............... 455C. Threshold Empirical Ideas and Sovereignty .................... 456D. Sovereignty and the U.N. Charter.................... ........... 459

IV. MODERN INTERNATIONAL SOVEREIGNTY .................................. 461A. U.N. Charter's Membership, Obligations, and

Responsibilities........................................ 462B. Security Council....................................... 464

*Winston P. Nagan, J. S.D. (1977) is Sam T. Dell Research Scholar Professor ofLaw in IJFL College of Law. He is widely published in human rights, a fellow of theRSA and the interim Secretary General of WAAS. He is also an affiliate Professor ofAnthropology and Latin American Studies and the Director of the University of FloridaInstitute for Human Rights, Peace and Development.

** Aitza M. Haddad, J.D. (2010), LL.M. (2011) is a Fellow of the University ofFlorida Institute for Human Rights, Peace and Development, and a Junior Fellow of theWorld Academy of Art and Science.

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C. The Practice ofInternational Law in the TwentiethCentury and Sovereignty ............................ ..... 466

D. The Treaty Model After the U N. Charter: Sovereigntyand the Control and Regulation of Global Spacesand Resources ............................. ............. ........... 467

E. Sovereignty and the Spaces Relating to the Ocean'sand Polar Regions of the World......................... 469

V. CONTEMPORARY JURIS CONSULTS RELATING TO THE LEGALTHEORY ASPECTS OF SOVEREIGNTY: U.K. SCHOLARSHIP .................... 471A. The Work and Contributions ofHL.A. Hart......... ............. 471B. The Contributions ofIan Brownlie ....................... 472C. The Contributions ofNico Schriver and Anthony Carty ......................... 474D. The Work and Contributions ofNeil MacCormick

and Philip Allot........................................ 476E. The Contributions of Colin Warbrick and Stephen Tierney..................... 478

VI. SOVEREIGNTY, INSTITUTIONAL COMPETENCE AND U.S. PRACTICE ..................... 479A. The Background to the Development of the Sovereignty

Idea in US. Legal Practice and Scholarship ........... ......... 4791. James Bradley Thayer ................................. 4812. John Chipman Gray............................ 4823. Oliver Wendell Holmes, Jr.......................... 483

B. Hart and Sacks: The Legal Process Approach .................. 485C. Carl Schmitt: Sovereignty Rooted in the Political

Exception .................................. .............. 486D. Hannah Arendt: Sovereignty Rooted in People's

Expectations. .................................... ....... 488E. Justice Samuel A. Alito Jr.: The Unitary Executive ......... ...... 489F. John Yoo: The Unitary Presidency .................................... 494G. Bruce Ackerman: Legislative Emergency Sovereignty............................. 496H. Laurence Tribe and Patrick Gudridge: The

Supremacy ofLaw. ............................... ........ 497VII. CONTEMPORARY PROBLEMS IN THEORY AND PRACTICE .. .................... 498

A. Empirical Perspectives and Theories of Decolonization ......................... 499B. The United Nations and the International Criminal Justice.................... 502C. Nuremberg and Individual Responsibility....................... 503D. The Nuremberg Principles ....................................... 505

VIII. CONSTITUTIVE PROCESS AND SOVEREIGNTY IN THE AFTERMATHOF NUREMBERG ................................................ ........ 506

A. The New Haven Approach: Empirical and NormativeIntegration ....................... .................... 508

B. The Map and Markers of the Global Social Process ........ ...... 510C. The Map and Markers of the World Power Process................................ 512D. Map and Markers of the Global Constitutive Process............................. 515

1. INTRODUCTION

This Article deals with the theory and practice of sovereignty from theperspective of a trend in theoretical perspectives as well as the relevant

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trend in practice. The Article provides a survey of the leading thinkers'and philosophers' views on the nature and importance of sovereignty.The concept of sovereignty is exceedingly complex.' Unpacking itsmeanings and uses over time is challenging. An aspect of this challengeis that the discourse about sovereignty is vibrant among diverse policy,academic, and political constituencies. 2 At times, its narratives arerelatively discrete and at other times, the narratives overlap with thediscourses from other professional orientations. In this Article, we seekto enhance clarification about the sovereignty discourses and narrativesused in theory and practice. For example, the Article begins with thework of Bodin and Hobbes. Both of these theorists make a case for theexercise of political power in hierarchical terms.3 It is unclear whetherthey are describing political power as it is, or recognizing the hierarchicalaspect of sovereignty, as it ought to be. Both Bodin and Hobbes werescholars, although Bodin was also a prominent politician. They were bothattracted to the idea of hierarchical sovereign power because they recognizedits importance in the maintenance of public order, which they saw threatenedby religious sectarian violence. In this sense, they would appear tohave a normative preference for the concentration and centralizationof power to retain minimum order. This would implicate a minimumnormativity creeping into their analysis. Additionally, they were bothaware the concentration of power could lead to its abuse. They deniedsovereign absolutism in somewhat modest terms. In short, they wereconcerned about social chaos and in a limited way, sovereign abuse.

Our study moves into the sovereignty idea in the context ofinternational law with reference to the work of Grotius, the Dutchinternational lawyer of the early 17th century. Grotius took thesovereignty discourse to another level by considering the problem of

1. See generally EDGAR GRANDE & Louis W. PAULY, COMPLEXSOVEREIGNTY: RECONSTITUTING POLITICAL AUTHORITY IN THE TWENTY-FIRST CENTURY(Univ. of Toronto Press (2005); see also Kanishka Jayasuriya, Globalization,Sovereignty, and the Rule of Law: From Political to Economic Constitutionalism?, 8CONSTELLATIONS, 442-60 (2001): see also Jacques Maritain, The Concept ofSovereignty, 44 AM. POL. SCI. REV. 343-57 (June 1950).

2. Id.3. See generally Preston T. King, THE IDEOLOGY OF ORDER: A COMPARATIVE

ANALYSIS OF JEAN BODIN AND THOMAS HOBBES, Psychology Press (1999); see generallyPreston T. King, THE IDEOLOGY OF ORDER: A COMPARATIVE ANALYSIS OF JEAN BODINAND THOMAS HOBBES (Psychology Press 1999).

4. Id5. Id.

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sovereignty in an environment of multiple sovereigns.6 This was anenvironment, which required law and legal skills and therefore provideda framework within which reasoned legal elaboration would provide amechanism to coordinate sovereign relations and thereby provideinternational restraints on sovereign absolutism.7 The Article then considersa significant 17th century juridical event in the practice of internationallaw. We refer to the Treaty of Westphalia (1648) and its relevance tothe development of sovereignty in practice. The importance of theTreaty is that it juridicalized the idea of an international society based onsovereign nation States. It is a framework that has had incredibletraction over time, and was reflected in the most powerful theories ofinternational law founded on the nation-state participants.8 The Articlethen reviews the work of other international scholars and philosophersfrom Pufendorf to Austin. These early international lawyers grapplewith the idea of sovereignty and the subordination of sovereignty to theidea of international obligation. Their work begins to show the influenceof positivism and the development of international law based on empiricalsources such as treaty and custom. These developments are then confrontedwith a new and rigorous jurisprudential theory of sovereignty developedby the English legal philosopher, John Austin.9 Austin developed thetheory of sovereignty of considerable power and durability and modifiedversions of his idea of sovereignty continue to be important ininternational law and international relations today.'o

It is important to note that Austin's view of sovereignty was anexplicit indication of the use of a positivistic, scientific view of law."Technically, the logic of Austin's system was to deny the legal characterof international law. Since there was no global super-sovereign, there

6. See generally EDWARD KEENE, BEYOND THE ANARCHICAL SOCIETY: GROTIUS,COLONIALISM AND ORDER IN WORLD POLITICS (Cambridge Uni. Press 2002); see alsoEdward Keene, The Dualistic Grotian Conception of International Society presentation at theBISA Annual Conference (2000); see also Samuel K. Murumba, Grappling with aGrotian Moment: Sovereignty and the Quest for a Normative World Order, 19 BROOK. J.INT'L L. 829 (1993); see also A. Claire Cutler, The Grotian Tradition in InternationalLaw, 23 BRIT. Y.B. INT'L L. 1 (1946).

7. Id.8. Istyan Hont, The Permanent Crisis of a Divided Mankind: 'Contemporary

Crisis of the Nation State' in Historical Perspective, 42 POL. STUD. Supp. 1 166-231(1994); see also Myres S. McDougal, Peace and War: Factual Continuum with MultipleLegal Consequences, 49 AM. J. INT'L L. 63-68 (1955).

9. See generally WILLIAM LOUTIT MORISON, JOHN AUSTIN (Stanford Univ. Press(1982); see generally JOHN AUSTIN & ROBERT CAMPBELL, LECTURES ON JURISPRUDENCE:OR, THE PHILOSOPHY OF POSITIVE LAW (John Murray 1880).

10. Id.; see also John Dewey, Austin's Theory of Sovereignty, 9 POL. Sc. Q. 31-52 (1894).

11. Id.

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could be no global super-law that subordinated sovereign competence.12

In his view, international law was a form of positive morality. Austindid not demolish international law completely, but his thick version ofsovereignty had a dramatic influence on the development ofinternational law into the 20th century.14 Austin's approach to lawsuggested that all law was rooted in the orders of the sovereign and thisreshaped legal thinking globally.15 It also implicated two differentversions of science: the first logical and analytical, the second empirical. 6

Each version had a distinctive approach to the identification of thesovereign, who was the source of all law. The analytical approach wasconsiderably refined in the 20th century by such leading theorists asH.L.A Hart.17 Hart and his influence have been significant in thescholarship of British international law and the discourse generated onthe concept of sovereignty.' 8 Several important British jurists areconsidered in this Article. The Article also shifts its focus to the 20thcentury examining the changing character of sovereignty in the aftermath ofthe First and the Second World Wars and the implications of the U.N.Charter for rethinking the boundaries of sovereignty. The Article thenfocuses on the practice of international law and its influence on theboundaries of sovereignty in terms of international agreements regulatingglobal spaces and resources, including the oceans and Polar Regions.Part IV examines the significant contributions made by scholars fromthe United Kingdom to the theory and understanding of sovereignty.This includes the work of H.L.A. Hart, Brownlie, and other morecontemporary U.K. scholars.

Part V shifts the focus to the scholars who had significantly influencedthe ideas of sovereignty in U.S. practice and theory. Here, Austin's

12. Id.13. David Lyons, Principles, Positivism, and Legal Theory, 87 YALE L.J. 415-35

(1977); see also Mark R. MacGuigan, Law, Morals, and Positivism, 14 U. TORONTO L.J.,1-28 (1961); see also H. L. A. Hart, Positivism and the Separation ofLaw and Morals,71 HARv. L. REV. 593 (1957).

14. Id.; see also Wilfrid E. Rumble, Legal Positivism of John Austin and theRealist Movement in American Jurisprudence, 66 CORNELL L. REV. 986 (198 1).

15. Id.16. Id.17. See generally NEIL MACCORMICK, H.L.A. HART (Stanford Univ. Press 2008);

see generally H.L.A. HART, LAW, LIBERTY, AND MORALITY (Stanford Univ. Press 1963).18. H.L.A. Hart, American Jurisprudence through English Eyes: The Nightmare

and the Noble Dream, 11 GA. L. REV. 969 (1977); see also H.L.A. Hart, Murder and thePrinciples ofPunishment: England and the United States, 52 Nw. U. L. REV. 433 (1957).

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influence has been less analytical and conceptual, and more empirical.' 9

In part, this is a reflection of the complexities of the form ofconstitutional governance as well as the influence of the revolt againstformalism in U.S. and its influence on legal theory.2 0 The Article tracesthe influence of positivism in its empirical sense on such theorists asHolmes, Gray, and Thayer. In the social sciences, the influence of theempirical approach was also beginning to find traction.2 1 The Politicaltheorist, Harold Dwight Lasswell, was a leader in the behavioralmovement in the U.S. 2 In the 1930's he published two books, whichhad a significant effect on providing an empirical orientation to the ideasof sovereignty and the nation State. In his book, World Politics andPersonal Insecurity, he explored the importance of understanding theglobal environment in terms of the individual's perspectives of identity,demand, expectation, insecurity, and anxiety. 23 He also wrotePsychopathology and Politics, where he reconceptualized the State as a"manifold of events" and insisted that the State was not a super individualphenomenon, but empirically, a many individual phenomenon.2 4 In fact,Lasswell was virtually recasting international relations in internationallaw with a focus on sovereign personalities, to the idea of world politicsin which the give and take of actual human beings shapes the conditionsof world order from the local to the global and vice versa.25 These ideas

19. Brian C. Schmidt, Anarchy, World Politics and the Birth of a Discipline:American International Relations, Pluralist Theory and the Myth of Interwar Idealism,16 INTERNATIONAL RELATIONS 9, 9-31 (Apr. 2002); see also Richard Little,Historiography and International Relations, 25 REV. OF INT'L STUDIES 291, 291-99(1999); see also Nicholas Greenwood Onuf, Sovereignty: Outline of a ConceptualHistory, 16 ALTERNATIVES: GLOBAL, LOCAL, POLITICAL 425, 425-46 (1991); see also M.H. Hoeflich, John Austin and Joseph Story: Two Nineteenth Century Perspectives on theUtility of the Civil Law for the Common Lawyer, 29 AM. J. LEGAL HIST. 36 (1985).

20. Id.; see also Susan Haack, Legal Pragmatism: Where Does 'The Path of theLaw' Lead Us?, 50 AM. J. OF JURISPRUDENCE, 71-105 (2005); see also Thomas C. Grey,Modern American Legal Thought, 106 YALE L.J. 493-517 (1996).

21. See generally EILEEN MUNRO, UNDERSTANDING SOCIAL WORK: AN EMPIRICALAPPROACH (Athlone Press 1998).

22. Myres S. McDougal & W. Michael Reisman, Harold Dwight Lasswell (1902-1978), 73 AM. J. INT'L L. 655-60 (1979).

23. HAROLD D. LASSWELL, WORLD POLITICS AND PERSONAL INSECURITY (Free Press1965).

24. HAROLD D. LASSWELL, PSYCHOPATHOLOGY AND POLITICS (Univ. Chi. Press1986).

25. MYREs S. McDOUGAL, HAROLD D. LASSWELL & LUNG-CHU CHEN, HUMANRIGHTS AND WORLD PUBLIC ORDER: THE BASIC POLICIES OF AN INTERNATIONAL LAW OFHUMAN DIGNITY, (Yale Univ. Press 1980); see also Myres S. McDougal, Harold D.Lasswell & Lung-chu Chen, Human Rights and World Public Order: A Framework forPolicy-Oriented Inquiry, 63 AM. J. INT'L L. 237-69 (1969); see also Myres S.McDougal, Harold D. Lasswell, & W. Michael Reisman, Theories about InternationalLaw: Prologue to a Configurative Jurisprudence (Faculty Scholarship Series, Paper 673(1968)).

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were later to emerge in an approach to sovereignty that involved morerefined theories and methods of a contextually understanding, and therooting of the sovereignty idea in global social, power, and constitutiveprocesses.2 6 This is discussed in the last part of the Article. In themeanwhile, there were more intermediate developments in legal andpolitical theory in the U.S. We explore the works of Hart and Sacks, CarlSchmitt and Hannah Arendt, and in contemporary terms, the contributionsof Judge Samuel Alito and the scholars Professor Ackerman (Yale), Yoo(Berkley), and Tribe (Harvard). The Article concludes by reference tothe implications for sovereignty of international practice indicated in theNuremberg Proceedings and then refers to the developments of Lasswelland McDougal in the New Haven School and the ideas and methods ofcontextual mapping for the empirical specification of the sovereigntyidea.

II. THE HISTORICAL CONTEXT

The era of world politics in our time recognizes that the mostimportant, territorially organized body politic in global political cultureis the State.27 The most basic characteristic of a State is that it needs adegree of control over the body politic, and control must invariably beaccompanied by the component of authority in the exercise of thegoverning competences. 28 The complex combination of authority andcontrol in the governance of a State is generally described in terms of theidea of sovereignty.29 The conventional meaning of a State that issovereign is that it is (1) a territorially organized body politic; (2) whichhas indications of a person or institution (3) vested with supreme control

26. Id.27. Winston P. Nagan, FRSA & Craig Hammer, The Changing Character of

Sovereignty in International Law and International Relations, 43 CoLUM. J. TRANSNAT'LL. 141 (2004-2005) explores conceptual basis of sovereignty in terms of theory andinternational legal practice. It seeks to understand sovereignty in the changing context ofinternational relations, globalization and the developments in international law that haveconstitutional characteristics under the U.N. Charter and practice. It also seeks to rootcontemporary ideas of sovereignty in the authority of the people's perspectivesthemselves, idea that is given formal expression in the preamble of the U.N. Charteritself.

28. Nandasiri Jasentuliyana, Perspectives on international law, KLUWER LAWINT'L 20 (1995) (statting that "[s]o far as States are concerned, the traditional definitionsprovided for in the Montevideo Convention remain generally accepted").

29. Supra note 1.

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and authority for that entity. 30 The two qualities that are indispensable tothe idea of sovereignty are the elements of control and authorit , whichaccompanies the sovereign's supreme governing competences. Sincethe term supreme qualifies the term sovereign, there is some ambiguitybetween the idea of supreme and the quantum of power necessary toassure supreme power. The clarification of this issue is empirical. Itwould require a greater understanding of the production and distributionof effective power within the body politic as well as the projection ofsovereign power externally. To reduce sovereignty to the idea of controlor supreme control seems to be incomplete. The general expectation isthe sovereign requires something more than raw power or control in theexercise of effective governing competence.3 2 It is generally thoughtthat sovereign competence is accompanied by the idea of authority.33

The inquirer therefore needs some clarification about whether the authorityaspects of sovereignty are purely matters of conceptual and normativediscourse or whether some aspects of authority are matters that ought tobe empirically defined and therefore have a scientific component tothem.3 This Article seeks to integrate a historical, a jurisprudential, anda world politics perspective. In the context of jurisprudence, it breaksnew ground by bringing in the work of Harvard professors that do notdirectly unpack sovereignty but in fact their theories advance understandingwith their notions of institutional competence. The perspective of worldpolitics, as reflected in the New Haven School, is also meant to bringnewer insights into sovereignty by understanding it as an outcome ofimportant global processes, which inform world politics and world publicorder.

Most theorists would agree that the term sovereignty includes referencesto supreme power and authority relating to a body politic that is territorially

30. Id.; see also MALCOLM NATHAN SHAW, INTERNATIONAL LAW 178 (CambridgeUniv. Press (2003) (stating that "Article I of the Montevideo Convention on Rights andDuties of States, 1933 lays down the most widely accepted formulation of the criteria ofstatehood in international law. It note that the state as an international person shouldpossess the following qualifications: '(a) a permanent population; (b) a defined territory;(c) government; and (d) capacity to enter into relations with other states"').

31. See Myres S. McDougal, W. Michael Reisman & Andrew R. Willard, Theworld process of effective power: The global war system, in POWER AND POLICY INQUEST OF LAW, ESSAYS IN HONOR OF EUGENE VICTOR RosTow 353, 353 (Myres S.McDougal & W. Michael Reisman eds., 1985); Literature that empirically explorespower; As Rosalyn Higgins does, see Higgins 1977 (discussing the meanings of powerand authority under New Haven jurisprudence).

32. See generally supra note 30.33. Id.; see also David Garlan, The Limits of the Sovereign State; Strategies of

Crime Control in Contemporary Society, 36 BRIT. J. CRIMINOLOGY 445-71 (1996).34. Id.

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determined or determinable. However, giving concrete meaning toideas like "supreme," "power," "authority," "body politic," and"territoriality" are complex matters and their meanings appear still to beintellectually and scholastically unfolding. In addition, there are otherlevels of complexity. Sovereignty, as understood in terms of governingcompetence, is tied to the prescription, application, and enforcement oflaw. 6 This really requires clarification from a very different branch ofinquiry: law. The work of Herman Dooyeweerd introduces the idea ofhow sovereignty has a special meaning in the context of jurisprudenceand how in territorial terms it exists and coordinates with sovereignsorganized in these terms. 37 Jenks and Larson seek to clarify this level ofcomplexity by su esting that sovereignty has an internal and anexternal dimension. Rosalyn Higgins concluded in her work that it isthe complexity of the external dimension of sovereignty that must alsobe considered.3 9 Sovereignty has meanings and applications in suchfields as international relations, world politics, international law, anddiplomacy.4 0

It may be that the sovereignty of internal domestic imperium andsovereignty in the context of international relations and world affairsrepresent very different conceptual worlds. Harold Lasswell and

35. See Ronald A. Brand, Sovereignty: The State, the Individual, and theInternational Legal System in the Twenty First Century, 25 HASTINGS INT'L & COMP. L.REV. 279 (2001-2002); see also Robert Latham, Social Sovereignty, 17 THEORY,CULTURE& SOCIETY 1- 18 (2000).

36. Nagan and Hammer, supra note 27.37. See generally HERMAN DOOYEWEERD, THE CONTEST ABOUT THE CONCEPT OF

SOVEREIGNTY IN MODERN JURISPRUDENCE AND POLITICAL SCIENCE (Free Univ. Q. 1951)(Tracing the historical development of Sovereignty in legal and social thought).

38. ARTHUR LARSON, C. WILFRED JENKS & OTHERS, SOVEREIGNTY WITHIN THELAW (Oceana Publications 1965) (consisting of a collection of essays by leading thinkersaddressing the problem of limiting sovereignty under the rule of law).

39. Rosalyn Higgins, Integrations of Authority and Control: Trends in theLiterature of International Law and International Relations, in TOWARD WORLD ORDERAND HUMAN DIGNITY, ESSAYS IN HONOR OF MYRES S. McDOUGAL 79, 80-81 (W.Michael Reisman & Bums H. Weston eds., 1976) (leading academic commentator on theissues of control and authority in the structure and process of International Legal Orderdiscusses the meanings of power and authority under New Haven jurisprudence andindicates that authority constitutes expectations of appropriateness in regard to thephases of effective decision processes maintaining that authority has to be seen asinterlocking with supporting control, or power).

40. See generally supra note 35; see also Janice E. Thomson,_State Sovereignty inInternational Relations: Bridging the Gap between Theory and Empirical Research, 39INT'L STUDIES Q. 213-33 (1995).

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Abraham Kaplan explained in their work how external sovereignty mustaccommodate a world of alternate sovereigns through the mechanisms ofdiplomacy and a wide variety of methods of formal and informalcommunications strategies. 4 1 The central issue here is the reach ofsovereign competence across State and sovereign lines. Reisman andWeisman enhance awareness of complexities, which represent a majorintellectual challenge in unpacking sovereignty for the conditions of thenew millennium. 42 Sovereignty is not static but instead is a changingphenomenon; changes take place when the very concept itself meansdifferent things to different professions, disciplines, and political andlegal cultures. Additionally, the nature of world politics and internationalrelations has been deeply impacted by processes encapsulated in theterm globalization.44 The simplest explanation of the globalizationphenomenon is in terms of its effects on sovereignty.4 5 The phenomenon ofglobalization works on the insight that sovereign borders have in factbecome porous in the face of the global flow of goods, services, people,and communications.46

A. Jean Bodin and Sovereignty Theories in Context

The modem concept of sovereignty owes a great intellectual debt tothe French political theorist Jean Bodin. Bodin's work is credited withgiving the sovereignty concept coherence, content, and currency.47 The

41. HAROLD D. LASSWELL & ABRAHAM KAPLAN, POWER AND SOCIETY, A FRAMEWORKFOR POLITICAL INQUIRY 159, 188 (1950). See generally Myres S. McDougal, W. MichaelReisman & Andrew R. Willard, The World Community: A Planetary Social Process, 21U.C. DAVIS L. REV. 807, 807 (1988) (exposing the markers, tools and methods of socialtheory that are relevant this exploration).

42. See generally W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard,The New Haven School: A BriefIntroduction, 32 YALE J. INT'L L. 575 (2007) (overviewing ofthe approach of the constitutive foundations of sovereignty in the International System).

43. Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The WorldConstitutive Process of Authoritative Decision, 19 J. LEGAL EDuc. 253 (1967) (This is anoverview on the constitutive foundations of sovereignty in the International System. Itexplains how a complete denial of the principles of humanitarian law, especially whengrave breaches of that law are involved, also represents a rejection of fundamentalhuman rights precepts and may point to an alternative normative order that essentiallydisparages the precept of human dignity.).

44. See generally David Held & Anthony G. McGrew, Governing Globalization:Power, Authority and Global Governance, POLITY (2002); see also Stephen M. Walt,International Relations: One World, Many Theories, 110 FOREIGN POLICY 29-32, 34-46(special ed.: Frontiers of Knowledge 1998).

45. Id.; supra note 1.46. Id.47. Jean Bodin, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (substantive revision

2010), http://plato.stanford.edu/entries/bodin; see also JEAN BODIN, ON SOVEREIGNTY,FOUR CHAPTERS FROM THE Six BOOKS OF THE COMMONWEALTH I (Julian H. Franklin ed.,1992) (stating that it should be examined considering its perspective from a scholarly

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simplistic sense of Bodin's contribution is that it was committed to theconcentration of power in the monarchy and therefore laid thefoundations of sovereign absolutism. 48 While it is possible to imposesuch a gloss on his work, there is ample evidence contradicting this inthe work of J.H.M. Salmon,49 in his work on sovereignty, as well asevidence of his public life. Bodin was by no means committed to sovereignabsolutism. 50 It would be better to see Bodin's work on sovereignty inthe context of the political turmoil of his time. The public order ofEurope, based on the Holy Roman Empire and the idea of Christianuniversality, was in fact crumbling under the influence of theReformation. 5' The demise of the Holy Roman Empire diminished thesense of Christian Universalism in Europe which produced a legacy ofreligious wars which appeared interminable and generated socialdislocation and anarchy-matters that universalism could not remedy. 52

Bodin's theory explains how public order tasks fell to local elites whocontrolled territory and population and how the local prince was seen asrepresenting the idea of majestas." Bodin had a number of experiences-

outlook of his experience as a protector of the people and a limitor of royal power; itsexternal aspect covers war and international relations. Sovereignty is defined in terms ofa Roman Law idea-malestas; "Sovereignty is the absolute and perpetual power of acommonwealth, which the Latins call malestas.").

48. See generally supra note 3.49. These books represent Bodin's work on sovereignty. It is possible that

Bodin's theory could be seen as justifying royal sovereign powers. Bodin also saw thisproperty as belonging to the people and not the crown. Julian H. Franklin, Jean Bodin,in I EUROPE 1450 To 1789, ENCYCLOPEDIA OF THE EARLY MODERN WORLD 270-72(Jonathan Dewald ed., 2004); J.H.M. Salmon, Theory of Sovereignty, in 5 EUROPE 1450TO 1789, ENCYCLOPEDIA OF THE EARLY MODERN WORLD 447-50 (Jonathan Dewald ed.,2004).

50. See J.H.M. Salmon, The Legacy of Jean Bodin: Absolutism, Populism orConstitutionalism?, 17 HISTORY OF POLITICAL THOUGHT 500,500-22, 523 (1996).

51. See generally Edward R. Norman, The Roman Catholic Church: an illustratedhistory (Univ. of California Press 2007); see generally PETER HAMISH WILSON, THEHOLY ROMAN EMPIRE, 1495-1806 (Palgrave Macmillan 1999); see generally VISCOUNTJAMES BRYCE BRYCE, THE HOLY ROMAN EMPIRE (Macmillan and Co. 1920).

52. See generally Moshe Reiss, The Clash of Civilizations or Religions, http://www.moshereiss.org/west/02 clash/02 clash.htm (last visited Feb. 6, 2012) (analyzingthe impact of religion and or culture on the secular nation State in world order. It givesan explanation of how the conflicts of religion that were generated during this periodwere a major public policy problem).

53. J.H.M. Salmon, supra note 50; see generally ALAN JAMES, SOVEREIGNSTATEHOOD: THE BASIS OF INTERNATIONAL SOCIETY IX (Taylor & Francis 1986) (stating"[m[ajestas est summa in cives ac subditos legibusque solute potestas" (Sovereignty issupreme power over citizens and subjugated peoples and is bound by no other law)).

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political, scholastic, and religious-making his view of sovereigntymore complex.5 4 Bodin's experience seems to indicate that what wasneeded locally was order that could be best sustained by hierarchy.55

The prince or the king seemed to be an ideal fit for the public order andsafety needs of the bod politic. Bodin was a scholarly eminence inmatters of governance. He was consulted by the king on technicalmatters of governance, held elected office, and was elected a deputy ofVermandois and to the Estate's General of Blois. He received thepresidency of the deputy of the Third Estate.58 In this role, he was atenacious defender of the interests of "the people." 59 This could be seenas promoting a weakening of the monarchy in the interests of the ThirdEstate. Bodin had a record of challenging royal power over economicissues. The religious man in him resisted royal policies that he saw asprovocative of religious conflict rather than tolerance. 6 0

Bodin grapples with the problem of the sovereign's relation totyrannicide, suggesting that there are circumstances in which despotismis justified and that tyranny is absolutely forbidden. 6 1 Bodin acknowledgesthat sovereignty has an internal aspect that covers full political power,and that there are different forms of State and forms of governance. Hesuggests that the notion of sovereignty in the form of an absolutistmonarch is only one form of governance. 6 2 Bodin's focus on monarchicalsovereignty draws an awkward distinction between a despotic monarchyand a tyrannical one.63 A despotic monarchy is still sovereign if it hasdefeated its enemies in a "just" war and then treats them as a despot.64

54. P.L. Rose, SELECTED WRITINGS ON PHILOSOPHY, RELIGION AND POLITICS,GENEVE: DROz (1980); A compendium of Jean Bodin's most important pieces. Theauthor uses them to provide an orientation to Bodin's work and to attract the reader tothe context of Bodin's work which implicated religious conflict. Contains "Epitre A sonneveau" 1586; "Consilium de institutione principis" 1603; "Sapientiae moralis epitome"1586; "Paradoxon" 1596; "Le Paradoxe de J. Bodin" 1598; "Lettre A Jean Bautru deMatras" 1568-69; "Lettre de M. Bodin" 1590.

55. Julian H. Franklin & Robert M. Isherwood, Jean Bodin and the Rise ofAbsolutist Theory, 1 HISTORY: REVIEWS OF NEW BOOKS (2010); see also J.U. Lewis,Jean Bodin's 'Logic ofSovereignty', 16 POL. STUD. 206, 206-22 (1968).

56. Id; see generally supra note 53.57. See generally supra note 47; see also Summerfield Baldwin, Jean Bodin and

the League, 23 CATH. HiST. REV. 160-84 (1937); see also Owen Ulph, Jean Bodin andthe Estates-General of 1576, 19 J. MODERN HIST. 289, 289-96 (1947).

58. Id.59. Id.60. Id.61. See Nagan and Hammer, supra note 2762. Id; see generally supra notes 3 & 53.63. Id.64. See Matthew S. Weinert, Bridging the human rights-Sovereignty divide:

Theoretical foundations of a democratic sovereignty, 8 HuM. RTs. REV. 5-32 (2007); id.at 8-9. "Bodin clarifies By royal or legitimate monarchy, he means that form of

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The war is valid under the law of nations, and therefore this form ofdespotism is valid. . If the sovereign conquers in an "unjust" war, thenhis conduct in expropriating the rights of the conquered is the one of atyrant.65 In Bodin's view, despotism may be appropriate and sometimeslegal but tyranny is never legitimate; it is contrary to divine and naturallaw.66 Bodin has tied sovereignty to certain limiting factors. In thedefinition of sovereignty, Bodin uses the term absolute, an adjectivedrawn from Roman Law experience where is linked to the idea ofsovereign prerogatives (legibus solutus). 67 Bodin's sovereign is notsubject to civil or positive law. However, the sovereign is bound bynatural and divine law.68 In short, the concepts of "supreme" or "absolute"are unequivocally limited by natural law, divine law and, to some extent,international law. 69 This suggests that Bodin's use of the term absoluteis meant to be qualified, and suggests restraints on sovereignty withinthe domain of natural and international law.70 Bodin's sovereignty wastrying to reconcile the need for some level of hierarchical authority forpublic order with his belief in the legitimacy of the people and in divineand natural law.7 1 The element of explicit elucidation lacking in Bodinis the conjoining of authority with sovereignty or majestas.72 It is clearthat when distinguishing different forms of State and governance, it is

government "in which the subject obeys the laws of the prince, the prince in turn obeysthe laws of God, and natural liberty and the natural right to property is secured to all (II.ii. 56)." By despotic monarchy he means "one in which the prince is lord and master ofboth the possessions and the persons of his subjects by right of conquest in a just war; hegoverns his subjects as absolutely as the head of a household governs his slaves?'Finally, by tyrannical monarchy he means that form of government "in which the laws ofnature are set naught, free subjects oppressed as if they were slaves, and their propertytreated as if it belonged to the tyrant" (56f).

65. Id.66. Id.67. See generally Richard Bonney, Absolutism: What's in a name?, I FRENCH

HIST. 93-117 (1987); see also Gilbert Bagnani, Divine Right and Roman Law, 3PHOENIX 51-59 (1949); see also Max Adams Shepard, Sovereignty at the Crossroads: AStudy ofBodin, 45 PoL. Sel. Q. 580-603 (1930).

68. Id.69. Id.; see generally ALESSANDRO PASSERIN D'ENTREVES, NATURAL LAW: AN

INTRODUCTION TO LEGAL PHILOSOPHY (Transaction Publishers 1951).70. See KLUWER LAW INT'L, PERSPECTIVES ON INTERNATIONAL LAW 20 (Nandasiri

Jasentuliyana ed., 1995) (giving an explanation of how the traditional definitionsprovided for in the Montevideo Convention remain a generally accepted concern withinStates in the International community).

71. See generally supra notes 47, 53, 64, and 67.72. Id.

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not at all clear that sovereignty draws its authority from the bodypolitic.73 Bodin's distinctions between despotism and tyrannicide seem todiminish the salience of divine and natural law as sources of sovereignauthority. In other words, it is not that Bodin is devoted to unqualifiedabsolutism; it is more that his concern with the practical problem ofpublic order and stability in a time of conflict and social dislocation.Hence, Bodin may be read as stressing the control element of the idea ofsovereignty.

B. The Work and Contributions of Thomas Hobbes

Thomas Hobbes believed that the motivation for the covenant creatingsovereignty is the notion of insecurity and fear.74 Hobbes expressed thisidea as a fear of an outside conqueror or fear of one's fellow citizens.This kind of social contract or covenant involves the renunciation ofrights or the transfer of rights and the authorization of sovereigncompetence.76 The central issue of the authority of the sovereign is notthe covenant or contract but whether if the sovereign can effectivelydischarge the obligation to protect those who have consented toobedience. In order to discharge the obligation to protect, thesovereign needs effective government.7 ' To have effective government, itsauthority must be absolute.79 It is essential for sovereignty to havecertain rights that cannot be tested. These rights confer powers that mustbe reliably and effectively used in governance.80 In this sense, Hobbes

73. See MALCOLM N. SHAW, INTERNATIONAL LAW 178 (5th ed.) (2003) (exploringof the most widely accepted formulation of the criteria of statehood in international lawprovided in Article I of the Montevideo Convention on Rights and Duties of States,1933 which lays down that the State as an international person should possess the apermanent population, a defined territory, a government and capacity to enter intorelations with other states).

74. S.A. Lloyd, Hobbes's Moral and Political Philosophy, STANFORDENCYCLOPEDIA OF PHILOSOPHY (substantive revision 2008), http://plato.stanford.edu/entries/hobbes-moral/ (stating that Hobbes is widely regarded as one of the great politicalphilosophers in history; his great work the "The Leviathan" is compared to the greatworks of the classical philosophers such as Plato, Aristotle, Locke, Rousseau, Kant, andRawls).

75. Id.; see also King supra note 3.76. Id; see generally GEORGE SHELTON, MORALITY AND SOVEREIGNTY IN THE

PHILOSOPHY OF HOBBES (St. Martin's Press 1992).77. Id.; see also David Dyzenhaus, Hobbes and the Legitimacy of Law, 20 Law

and Philosophy, no. 5, 461-98 (2001); see also Quentin Skinner, Hobbes on Sovereignty:An Unknown Discussion, 13 POL. STUD. 213-18 (1965).

78. Id; see also W. Michael Reisman, Sovereignty and Human Rights inContemporary International Law, 84 AM. J. INT'L L. 866, 866-76 (Oct. 1990).

79. Id.80. Id; see also BARRY HINDEss, DISCOURSES OF POWER: FROM HOBBES TO FOUCAULT,

(Blackwell Publishers 1996).

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provides a cleaner and more precise concept of sovereignty than Bodinin terms of effective power or control.8 ' Indeed, Hobbes believes thatlimiting authority generates difficult disputes about what the preciselimits are of authority itself. Moreover, if the individual citizen mayunilaterally determine whether the government should be obeyed or not,then the result may be civil war or paralyzed government.82 According toHobbes, there can be no authority above the authority of the sovereignfor defining the question of authority itself.83 In effect, Hobbes workson a dismal view of the human capacity for cooperation and a greatlyenhanced view of the ubiquity of social conflict.

Notwithstanding Hobbes' limited exceptions to sovereignty, his worktakes us far along the road of a sovereignty that is essentially unlimited.In his work, Hobbes seems to be collapsing sovereignty into nakedpower; and his sense of obligation is so limited and arid that Hobbesdoes not account for the possibility that sovereign power needs authorityand authority that is more than a hypothetical covenant. In this sense,Hobbes may have influenced the versions of sovereignty of the 19th andearly 20th centuries, which tended to claim a form of sovereign stateabsolutism. Hobbes wrote several versions of his political philosophyand there are many fine overviews of his normative philosophy.8 4 Homo

81. King, supra note 3.8 2. Id.83. ToM SORELL & Luc FoISNEAu, LEVIATHAN AFTER 350 YEARS (Oxford Univ.

Press 2004) (giving an elegant appraisal of the legacy of The Leviathan).84. Hobbes wrote several versions of his political philosophy, including The

Elements of Law, Natural and Politic (also under the titles Human Nature and DeCorpore Politico) published in 1650, De Cive in 1642 published in English asPhilosophical Rudiments Concerning Government and Society in 1651, theEnglish Leviathan published in 1651, and its Latin revision in 1668. Others of his worksare also important in understanding his political philosophy, especially his history of theEnglish Civil War, Behemoth published in 1679, De Corpore in 1655, De Homine in1658, Dialogue Between a Philosopher and a Student of the Common Laws ofEngland in 168 1, and The Questions Concerning Liberty, Necessity, and Chance in1656. All of Hobbes's major writings are collected in The English Works of ThomasHobbes, edited by Sir William Molesworth (ll volumes, London 1839-1845), and ThomaeHobbes Opera Philosophica Quae Latina Scripsit Omnia, also edited by Molesworth (5volumes, London, 1839-45). Oxford University Press has undertaken a projected 26volume collection of the Clarendon Edition of the Works of Thomas Hobbes. So far 3volumes are available: De Cive edited by Howard Warrender, The Correspondence ofThomas Hobbes edited by Noel Malcolm, and Writings on Common Law and HereditaryRight edited by Alan Cromartie and Quentin Skinner. Readers new to Hobbes shouldbegin with Leviathan, especially Parts Three and Four, as well as the more familiar andoften excerpted Parts One and Two.

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homini lupus a Popular Roman proverb by Plautus (dead 184 B. C.), inhis Asinaria is later used by Thomas Hobbes in his De cive, Epistoladedicatoria. Hobbes taught that "man is a wolf to other men" becausehe believed that people, by nature, were selfish, and acted only to servetheir own interests." Hobbes believed that governments existed to protectpeople from their own evil nature. 86 He further taught that the only wayto achieve lasting peace was for people to subjugate themselves to asupreme, sovereign monarch. 87 Although Hobbes makes a strong casefor sovereign absolutism, his writings also suggest that there are somelimits to State absolutism. The citizen may disobey the governmentbecause the citizen obtains a right of self-defense against sovereignpower. 88 Hobbes also provides for resistance rights when family issuesand honor values are at stake.89 In his view, the fundamental obligationon the sovereign is the obligation to protect the citizen. If the sovereignfails to do so, this obligation no longer holds. 90 These limits on stateabsolutism seems to suggest that limits on the currency and coherence ofHobbes' concern for unfettered sovereign power.

C. The Work and Contributions ofHugo Grotius

Austin's later theory sought to be logically rigorous concluding both,international law and constitutional law, which purported to limit the lawmaking competence of the sovereign, were not really law but simplyforms of positive morality.91 This view challenged centuries ofinternational law, which had been largely sustained by the ideas of theius gentium and later developments in natural law.92 It would beappropriate to briefly retrace the footprints of sovereignty's influence oninternational law prior to Austin. The most important contribution tonatural law emerged from the Dutch Jurist, Hugo Grotius.9 3 Grotiuscame from a nation State that had been immediately involved in a war of

85. S.A. Lloyd, Special Issue on Recent Work on the Moral and PoliticalPhilosophy of Thomas Hobbes, 82 PAC. PHIL. Q. 3, 3-4 (2001) (affirming the currentsalience and durability of Hobbes' ideas).

86. Id.; see generally supra notes 76, 77, and 80.87. Id.88. Id.89. Id.90. Id91. See generally supra note 14.92. See generally supra note 69.93. See generally EDWARD KEENE, BEYOND THE ANARCHICAL SOCIETY: GROTIUS,

COLONIALISM AND ORDER IN WORLD POLITICS (Cambridge Univ. Press 2002); see alsoA. Claire Cutler, The 'Grotian Tradition' in International Relations, 17 REV. INT'LSTuD. 41, 41-65 (1991); see also Knud Haakonssen, Hugo Grotius and the History ofPolitical Thought, 13 POL. THEORY 239, 239-65 (1985).

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independence against Spanish colonialism. 94 The states that comprisedthe Netherlands were vigorous claimants of the right to self-determinationand independence of the nation state. 95 Grotius' masterful integration ofthe independence and autonomy of the sovereign state, and the challengesof developing orderly relations between states in periods of war andpeace, shows how a great deal of international law effectually evolvedwith a working through of the imperatives of sovereign power andauthority and the constraints suggested by reason and expressed in theform of international law.96 A good indication of Grotius' approach isfound in the following quotation:

Fully convinced ... that there is a common law among nations, which is validalike for war and in war, I have had many and weighty reasons for undertakingto write upon the subject. Throughout the Christian world I observed a lack ofrestraint in relation to war, such as even barbarous races should be ashamed of,I observed that men rush to arms for slight causes, or no cause at all, and thatwhen arms have once been taken up there is no longer any respect for law,divine or human; it is as if, in accordance with a general decree, frenzy hadopenly been let loose for the committing of all crimes.97

One of the most important contributions that Grotius made to theunderstanding of sovereignty in a climate of multiple sovereigns was hisintroduction of the idea that legal thought and legal reasoning, whichimplicated rationality, could be deployed in a way that brought reason tothe conduct of sovereigns among themselves." Grotius did much toestablish the idea of just war. He maintained that there were discoverablenatural justice principles which would justify war as just cause principlesof self-defense, reparation for injury, and punishment.99 The concept ofjust war is not really a license to make war, it is meant to be a constraint

94. Id.95. Id.96. HUGONIs GROTIUs, DE JURE BELLI AC PACIS [THE LAW OF WAR AND PEACE]

(1625); This piece is a masterly integration of the independence and autonomy of thesovereign state and the challenges of developing orderly relations between states inperiods of war and peace. It provided sufficient deference to the reality of the state andprovided the validation of reason as a foundation for the law of nations between states.

97. HUGo GROTIUS, ON THE LAND OF WAR AND PEACE (DE IURE BELLI AC PACIS),Prologue sec. 28, (Carnegie ed. 1925).

98. Id; see also Bacchus, James, Groping Toward Grotius: The WTO and theInternational Rule of Law, 44 HARV. INT'L L.J. 533 (2003); see also Joachim von Elbe,The Evolution of the Concept of the Just War in International Law, 33 AM. J. INT'L L.665-68 (1939).

99. Id.; see generally PAUL RAMSEY, THE JUST WAR: FORCE AND POLITICALRESPONSIBILITY (Rowman & Littlefield 2002).

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on recourse to war. His work also established the legal foundations ofrestraint found in the ius in bello.o00 Grotius is justly regarded as thefather of modem international law.

D. The Treaty of Westphalia

The theories of Bodin and Hobbes should also be measured against thepractical world of international diplomacy of the 17th century. The mostsignificant diplomatic and juridical event for the idea of sovereigntyemerged from the Peace of Westphalia of 1648.101 This was essentiallya peace treaty seeking to establish a response to religious conflict inEurope.102 Notably, Bodin had sought to constrain the impulse of thisconflict in France. 0 It is possible that Hobbes, too, may have beinginfluenced by the problems of conflict and the importance of strongcentral authority to constrain it.' 04 The Treaty of Westphalia, in effect,recognized that a European body politic would be a decentralizedsovereignty-dominated body politic.'0o This meant that the local elites(i.e., dukes, princes, kings) would now exercise secular sovereignauthority over the lands and territories over which they could claimauthority and control.10 6 It is commonly understood that the Peace ofWestphalia was the decisive political and juridical event for establishinga European system of authority based on the sovereignty of the nationstate.' 0 Moreover, the nation State would define its internal obligations

100. Id.; see also Judith Gail Gardam, Proportionality and Force in InternationalLaw, 87 AM. J. INT'L L. 391, 391-413 (1993).

101. Treaty of Westphalia, The Avalon Project: Documents in Law, History andDiplomacy, Yale Law School; Lillian Goldman Law Library (accessed on Mar. 29,2012); see generally MAJOR PEACE TREATIES OF MODERN HISTORY 1648-1967 (Fred L.Israel ed., 1967) (stating that the centrality of the Treaty is that it was generated byinterest groups seeking to end interminable religious conflicts in Europe. It essentiallydiminishes the political importance of the idea of Christian Universalism under Papalauthority and effectually decentralizes control and authority in terms of aggregates of apopulation, territory and the localized structures of hierarchical authority).

102. Id.; see generally DANIEL H. NEXON, THE STRUGGLE FOR POWER IN EARLYMODERN EUROPE: RELIGIOUS CONFLICT, DYNASTIC EMPIRES, AND INTERNATIONAL CHANGE(Princeton Univ. Press 2009); see also Leo Gross, The Peace of Westphalia, 1648-1948,42 AM. J. INT'L L. 20-41 (1948).

103. Id.; see generally supra notes 3, 47, 53, 64, and 67.104. See generally supra notes 3 & 80.105. Derek Croxton, The Peace of Westphalia of 1648 and the Origins of Sovereignty,

21 INT'L HIST. REv. (2010); see also Eric Lane, Demanding Human Rights: A Change inthe World Legal Order, 6 HOFSTRA L. REv. 269 (1977-1978).

106. Id.107. Id.; see Richard Falk, A New Paradigm for International Legal Studies:

Prospects and Proposals, 84 YALE L.J. 969, 982-87, 1013, 1020 (1975). Contemporarysalience of Westphalia for the sovereignty/State paradigm of world order. Drawsattention to forces emerging in the global environment that essentially transcend to state,including the importance of the emergent global civil society and the work of the New

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according to the citizenship of its subjects rather than its religious orconfessional outlook.108 The important point here is that the rooting ofsovereign authority in secular terms would also imply that the limitations(that, for example, Bodin supported on sovereign authority based onnatural law and divine law) would no longer be relevant to a form ofsovereignty that was meant to separate itself from religion. It is thisdevelopment of the sovereignty idea and its political expression anddevelopment in the Treaty of Westphalia that provides us with theprototype of the modem State system.109 This system is a sovereignty-dominated paradigm of the global, legal, and political process, significantlydominated by the nation state.' 10 It would appear that the drafters of theWestphalian Treaty were not only motivated by the enduring religiousconflicts, but also by the influence of Bodin and Hobbes. What isdistinctive in Westphalia is that these theoretical and philosophical viewsare given a strong institutional expression in the form of a multilateraltreaty. Modem commentators have suggested that from the perspectiveof international relations and international law, the Treaty of Westphaliawas a decisive juridical event.'' In this sense, theory and philosophygravitate to law and jurisprudence."12

E. The Work and Contributions ofPufendorf and Vattel

Baron Samuel von Pufendorf was a German scholar with a wide rangeof powerful interdisciplinary skills." 13 As a jurist, he did his most creativework on international law at Lund University."14 Pufendorf shows how

Haven School and the procedures and methods which anticipate the possibility of othersocial forces and foundations of modem international law.

108. Id.; see also Bjorn Hettne, The Fate of Citizenship in Post- Westphalia, 4CITIZENSHIP STUDIES, 1 (2010); see also Charles Tilly, Citizenship, Identity and SocialHistory. 40 INT'L REV. Soc. HisT. 1, 1-17 (1995).

109. Id; see also RICHARD FALK, THE DECLINE OF CITIZENSHIP IN AN ERA OFGLOBALIZATION, IN PEOPLE OUT OF PLACE: GLOBALIZATION, HUMAN RIGHTS, AND THECITIZENSHIP GAP (Alison Brysk & Gershon Shafir eds., Psychology Press 2004); see alsoRICHARD FALK, THE DECLINE OF CITIZENSHIP IN AN ERA OF GLOBALIZATION, 4CITIZENSHIP STUDIES, 1 (2010).

110. Id.; see also Jack Goldsmith, Sovereignty, International Relations Theory, andInternational Law, 52 STANFORD L. REV. 959-86 (2000).

111. Id.112. Id.113. Id.114. See generally Hugh Chisholm, Pufendorf Samuel, ENCYCLOPEDIA BRITANNICA

(1 1th ed., Cambridge Univ. Press ed. 1911).

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he struggled with Hobbes' philosophy and rejected the destructiveimplications of Hobbes' views of human nature."s Pufendorf was alsoinfluenced by Grotius, and therefore by Grotius' ideas of internationalobligation and the reality of the state; namely, how Grotius consideredthat the state represented the aggregate will of individuals in it, an ideathat seemed to anticipate the rooting of sovereignty in the authorityof the people." 6 In regard to international law, he argued that naturallaw does not extend beyond the limits of this life and that it confinesitself to regulating external acts.'" 7 In this sense, Pufendorf was seekingto secularize natural law and bring the idea closer to what later would beconsidered empirical science. In particular, the externalization of naturallaw effects may be seen as an effort to make it objective. Pufendorf alsotried to strengthen the authority foundations of the sovereign state bysuggesting that the state (civitas gentium) was a moral person (personamoralis)."' This notion would strengthen the idea of sovereignty of thenation state. Further, the introduction of the moral element meant thatall nations, whether Christians or not, were a part of humanity expressedthrough the state as a moral person. Therefore international law recognizesstates with a certain moral persona subject to obligations as moral personain their interactions with each other."9 The international law of the 16thcentury was also influenced by the work of the international law scholar,Swiss philosopher and jurist, Emerich de Vattel.120 Vattel shows how heaccepted the sovereignty of the nation state but also stressed the

115. Id.; see also Fiammetta Palladini, Pufendorf disciple of Hobbes: The nature ofman and the state of nature: The doctrine of socialitas, 34 History of European Ideas,(2012); see generally SAMUEL PUFENDORF, OF THE LAW OF NATURE AND NATIONS (BasilKennett, trans., 1729) (providing a comprehensive system of society, law, and governmentbased on a theory of human nature founding natural law on the need for sociability).Pufendorf paid great respect to Grotius as the founder of a modern, enlightened naturallaw, but criticized his remaining "scholasticism." Similarly, he learned from Hobbes butrejected the reduction of natural law to individual self-interest.

116. Id.; see also John Finnis, On the Incoherence of Legal Positivism, 75 NOTREDAME L. REV. 1597 (1999-2000).

117. Id.; see generally Samuel von Pufendorf, De officio hominis et civis juxtalegem naturalem libri duo (Oxford Univ. Press 1927); see also Samuel Pufendorf(Freiherr von), CRAIG L. CARR, THE POLITICAL WRITINGS OF SAMUEL PUFENDORF(Oxford Univ. Press 1994).

118. Id.; see also Hans Aufricht, Personality in International Law, 37 Am. Pol. Sci.Rev. 217, 217-43 (1943); see generally CHARLES EDWARD MERRIAM, HISTORY OF THETHEORY OF SOVEREIGNTY SINCE ROUSSEAU (Columbia Univ. Press 1900).

119. Id.; see also Harold Hongju Koh, Why Do Nations Obey International Law?,106 YALE L.J. 2599, 2599-2659 (June 1997) (Symposium: Group Conflict and theConstitution: Race, Sexuality, and Religion).

120. Id.

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importance of the nation state for advancing the common good.121 Heexpressed his fundamental idea as follows:

All nations are therefore under a strict obligation to cultivate justice towardseach other, to observe it scrupulously, and carefully to abstain from everythingthat may violate it. Each ought to render to the others what belongs to them, torespect their rights, and to leave them in the peaceable enjoyment of them. 122

F. The Work and Contributions ofMoser and Martens

The work of Johann Jakob Moser and Georg Friedrich von Martens isparticularly important for changing and justifying the endurance of a"strong" or "thick" 23 sovereignty in international law.124 Both of thesewriters were influenced by the positivist approach to international law,' 25

which meant a sharp break with the ideas of international obligation asfounded in terms of morality or natural law.' 26 What was important waswhat sovereigns did and how they acted. In the international context,sovereigns overwhelmingly communicated with each other in terms ofagreements.127 Moser shows that this method of communication meant a

121. See generally EMMERICH DE VATTEL, THE LAW OF NATIONS, OR PRINCIPLES OFTHE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS(Joseph Chitty, trans.) (1834) (explaining Vattel's political philosophy views of politicsand international relations). His book influenced recognized people of history and itmodernized the entire theory and practice of international law. It has been translated toseveral languages and distributed all around the world.

122. Emerich de Vattel , Droit des gens; ou, Principes de la loi naturelle appliquTsa la conduite et aux affaires des nations et des souverains (1758), LAW OF NATIONS OR,PRINCIPLES OF THE LAW OF NATURE: APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONSAND SOVEREIGNS (1759 First English Edition, Book II, Chapter V).

123. Cynthia Weber, Reconsidering statehood: examining the sovereignty/intervention boundary. Review ofInternational Studies, 18 , pp 199-216, (1992).

124. Martti Koskenniemi, Into Positivism: Georg Friedrich von Martens (1756-1821) and Modern International Law, 15 CONSTELLATIONS No 2 190, 201 (2008). Thisarticle is an analysis of the legacy of the "positivism" of Georg Friedrich von Martens. Itdescribes it as a positivism of fear or a conservative disposition and shows how Martensexplained that natural law does not entitle Christian princesses to take territory occupiedby savages creating a revolution in the enthusiasm for human freedom and enlightenment.;see also Peter P. Remec, The Position of the Individual in International Law Accordingto Grotius and Vattel, 44 REVUE INTERNATIONALE DE LA CROIX-ROUGE 314, 314-15(1962).

125. Id.126. Id; see also Hans Wehberg, Pacta Sunt Servanda, 53 AM. J. INT'L L. 775-86

(1959).127. Id; see generally MICHAEL FOWLER & JULIE MARIE BUNCK, LAW, POWER, AND

THE SOVEREIGN STATE: THE EvOLUTION AND APPLICATION OF THE CONCEPT OF SOVEREIGNTY(Penn State Press 1995).

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positive source of international law found in the agreements made by thesovereigns. 128 According to Martens it was possible to establish thismethod because one could empirically determine what the sovereignsconsented to in their agreements by collecting all possible treaties andorganizing them.12 9 Such agreements represent the consent of the sovereignto be bound and therefore such consent is reconcilable with the sovereignpowers of the state. A second component of international law wasreflected in the recognition of the custom that the sovereigns hadgenerated in their operations with each other.' 3 0 In a technical sense,custom is a non-consensual source of international law, and since it couldbe seen as non-consensual, it might be inconsistent with the sovereignautonomy of the other state. The test evolves in such a way as to suggestthat custom carries the implicit consent of the State to be legally bound.Essentially, custom was qualified by the principle opinio juris sivenecessitatis.131 Custom and treaty, therefore, became the primary sources ofinternational law and these sources could be reconciled with thesovereignty of the nation state without recourse to the vagaries of thenatural law tradition.132 Powerful as these theories were, they could notquite destroy the Grotian tradition, which sought to make international lawsubject to a principle of reasonable prescription and application.Additionally, the Moser-Martens approach still had to confront thepower of Austin's theory and its challenge to the reality of international

128. Id; see generally JOHANN JAKOB MOSER, VERSUCH DES NEUESTEN EUROPAISCHENVOLKERRECHT IN FREIDENS- UND KRIEGSZEITEN (10 vols., 1777-1780); BEITRAGE ZU DEMNEUESTED EUROPAISCHEN VOLKERRECHT IN FRIEDENSZEITEN (5 vols., 1778-1780);BEITRAGE ZU DEM NEUESTED EURPAISCHEN VOLKERRECHT IN KRIEGZEITEN (3 vols., 1779-1780) (1732 to 1780) (explaining that International law was above all professionalpractice and was the first to discuss in an adequate form the subject of Europeaninternational law in times of peace and war being the first legal scholar to bring out acomplete presentation of German constitutional law). His entire work shows hisinfluence in the process of making public law an academic science.

129. Id.; see generally GEORG FRIEDRICH MARTENS, SUMMARY OF THE LAW OF NATIONS:FOUNDED ON THE TREATIES AND CUSTOMS OF MODERN NATIONS OF EUROPE (WilliamCobbett, trans., 1986) (providing a list of the principal treatises from 1748 to the time ofits creation that have great practical utility even when it might be seen as a very partialview of the systems of Europe of that time) The book had gone through 13 editions andin 1894 Holland won the Swiney Prize of E100 and a silver cup.

130. Id.131. See generally, SUZANNE LALONDE, DETERMINING BOUNDARIES IN A CONFLICTED

WORLD: THE ROLE OF UTI POSSIDETIS (McGill-Queen's Press (MQUP) 2002); see alsoStern, Brigitte, Custom at the Heart of International Law, 11 DUKE J. COMP. & INT'L L.89 (2001); see also Chodosh, Hiram E., Neither Treaty nor Custom: The Emergence ofDeclarative International Law, 26 TEX. INT'L L.J. 87 (1991); see also Slama, Jo Lynn,Opinio Juris in Customary International Law, 15 OKLA. CITY U. L. REv. 603 (1990); seealso G. I. Tunkin, Remarks on the Juridical Nature of Customary Norms ofInternationalLaw, 49 CALIF. L. REv. 419, 419-30 (1961).

132. Id.

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law that it was merely positive morality.133 The leading Englishinternational lawyer of the 19th and early 20th century, Holland,lamented that international law reflected the vanishing point of legaltheory.134 Moreover, other leading international lawyers appear to agreewith this idea.135

G. John Austin and the Theory of Sovereignty

The political and philosophical writings of Bodin and Hobbes,'3 6 andthe practical expression of some of these themes in the European Statesystem in the aftermath of the Westphalian peace,'37 received a significantand strengthened intellectual presence through developments in legaltheory and legal culture.' 38 In his early works, Austin developed hisimperative theory of law that used the emerging tools of positivism toprovide, for a linguistically sensitive effort, a definition and redefinitionof the nature of law.139 The central idea was that law was the commandof a sovereign imposed by a sanction.' 40 The command was directed at

133. See generally THOMAS ERSKINE HOLLAND, THE ELEMENTS OF JURISPRUDENCE(13th ed. 1924) (explaining positive law, its source, object and the importance of thelaws of rules of human action in the determination of rights of public or private characterproviding a guide on how to analyze them and their leading classification, which is basedon the persons with whom it is connected; public persons being the state or its delegates).

134. See generally CHINA MIlVILLE, BETWEEN EQUAL RIGHTS: A MARXIST THEORYOF INTERNATIONAL LAW (Haymarket Books 2006).

135. Id.; see generally HERSCH LAUTERPACHT, THE FUNCTION OF LAW IN THEINTERNATIONAL COMMUNITY (Oxford Univ. Press 2011); see also W. Michael Reisman,International Lawmaking: A Process of Communication: The Harold D. LasswellMemorial Lecture (Proceedings of the Annual Meeting), 75 AM. Soc'Y INT'L L. 101,101-20 (1981) (Proceedings of the 75th Anniversary Convocation. Order, Freedom,Justice, Power: The Challenges for International Law); see also Onuf, NicholasGreenwood, International Legal Order as an Idea, 73 AM. J. INT'L L. 244 (1979); seealso H. Lauterpacht, The Nature of International Law and General Jurisprudence, 37ECONOMICA 301, 301-20 (1932).

136. See generally supra notes 3, 47, 53, 64, 67, and 80.137. See generally supra notes 101, 102, and 105.138. Supra note 1.139. See generally supra note 9; see also John Austin, THE PROVINCE OF

JURISPRUDENCE DETERMINED (John Murray 1832). Austin was the leading legalpositivist of his time and his approach to sovereignty is an effort to bring the objectivityof science to the description and analyses of law based on sovereign authority. Hismodel is essentially a hierarchical concept of law with the sovereign in a superiorposition issuing orders and commands to the community, which is in the habit ofobedience.

140. Id; see generally JOHN AUSTIN, ROBERT CAMPBELL, LECTURES ON JURISPRUDENCE:OR, THE PHILOSOPHY OF POSITIVE LAW (John Murray 1880); see also Kenneth Mann,

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members of the community, who were in the habit of obedienceregarding the sovereign's commands.14 1 Since the State in Europe hadevolved with higher degrees of centralization and administration, theidea of the State as sovereign, and as the source of all law, had anintuitive commonsense appeal. 4 2 This was a relatively easy model tounderstand because it was straightforwardly hierarchical with the geniusof having some of the most essential characteristics of law, which itcould account for.143 The problem with Austin's theory is that it had aclose affinity with rower or control.'" The element of authority in hismodel was lacking. 45 This meant that the model, which reduced law tosuperior power, looked no different from a gunman who enters a bankwith a gun and demands that the cash be handed over to him. In short,the gunman exercises a power to force someone (or oblige someone) todo or refrain from doing something. But the question of whether there isan obligation, which is founded on authority and which requirescompliance, is ignored. The Austinian model gravitated to the statusof the conventional view of law and solidified the place of sovereigntynot only in municipal law but also in international law.14 6 It is possibleto view this development as a critical formalization of the thoughts ofBodin, Hobbes, and the outcomes of the Westphalian peace. Nineteenthcentury State practice solidified a Eurocentric conception of sovereigntyand state.14 7 These developments were consolidated by the Congress ofVienna and later by the process known as the Concert of Europe. 48 Thedevelopments of European colonial expansion, which were acceleratedin the 19th century, used sovereignty ideas imposed on the complex colonialsocieties that they had conquered to generate a degree of order amongcolonial competitors.

Punitive Civil Sanctions: The Middleground between Criminal and Civil Law, 101 YALEL.J. 1795, 1795-1873 (1992) (Symposium: Punishment); see also George C. Christie,The Model ofPrinciples, 1968 DUKE L.J. 649 (1968).

141. Id.142. Id.; see also MacCormick, N., Beyond the Sovereign State, 56 MOD. L. REV. 1-

18(1993).143. Id144. Samuel Enoch Stumpf, Austin's Theory of the Separation of Law and Morals,

14 VAND. L. REV. 117 (1960-1961); see also John Dewey, Austin's Theory of Sovereignty, 9POL. Sc. Q. 31, 31-52 (1894).

145. Id.146. Id.147. Supra note 1.148. Geoffrey R. Watson, The Death of Treaty, 55 OHIO ST. L.J. 781, 789-90 (1994).

Describes how positivism reached its height in the writings of the English philosopherJohn Austin. Explains how the developments of sovereignty where consolidated by theCongress of Vienna and later by the Concert of Europe; a process where the Europeanstates met and considered transnational matters of European policy and public order.

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III. THE THEORY OF SOVEREIGNTY AND INTERNATIONAL LAW

A. Sovereignty and International Obligation After theFirst World War

A vast corpus of treaty law was generated between European colonizersand non-European potentates. 149 These potentates were deemed to besovereign for the purpose of transferring their powers to their colonialconquerors.150 However, in this process, in terms of control and authority,vast sectors of the planet experienced the loss of sovereignty. 151 The19th century development essentially made non-European states candidatesfor admission into the initially established European system ofinternational law.152 Moreover, in the 20th century, as decolonizationaccelerated, and as shown by the 2006 United Nations Member StatesList,153 admissions to the international club of State sovereignsaccelerated.154 Today, according to the 2008 Non-member States and

149. See generally supra notes 101, 102 and 105.150. Nele Matz, Civilization and the Mandate System under the League of Nations

as Origin of Trusteeship, 9 Max Planck Y.B. U.N. L. 47, 47-95 (2005); see also Anghie,Antony, Colonialism and the Birth of International Institutions: Sovereignty, Economy,and the Mandate System of the League of Nations, 34 N.Y. UNIV. J. INT'L L. & POL. 513(2002).

151. Id.152. See generally CHARLES HENRY ALEXANDROWICZ, AN INTRODUCTION TO THE

HISTORY OF THE LAW OF NATIONS IN THE EAST INDIES (Clarendon Press 1967).(challenging the conventional wisdom that the roots of modem international law arepurely Eurocentric). This pioneering study draws attention to the practice and customs ofcolonial expansion done through the currency of legal instruments with non-Europeansovereigns. It should be noted that the treaties and practices between European and non-European sovereigns were included as sources of Eurocentric International Law.

153. See Press Release, Department of Public Information, United Nations MemberStates, U.N. Department of Public Information Press Release: News and Media DivisionPress Release ORG/1469 (June 28, 2006) (documenting the expansion of sovereignty inthe world community).

154. Lim, Kok-ui, Taiwan's Case for United Nations Membership; Chang, Parris,1 UCLA J. INT'L L. & FOREIGN AFF. 393 (1996-1997); see also Carroll, Anthony J.;Rajagopal, B., The Case for the Independent Statehood of Somaliland, 8 AM. U. J. INT'LL. & POL'Y 653 (1992-1993); see also Nathaniel Berman, Sovereignty in Abeyance: Self-Determination and International Law, 7 WIS. INT'L L.J. 51 (1988-1989); see alsoMazzawi, Musa, Self-Determination in International Law-A Study of the RhodesianCase, 1 POLY L. REV. 15 (1975); David Lloyd, who suggests that only the first twocriteria for statehood should be met: (1) having the traditional characteristics of a state;and, (2) expressing the willingness to abide by the Charter, explains that "under theCharter, when the United Nations refuses to recognize a state created in violation ofinternational law, its members are prohibited from recognizing that state. He adds that,"the United Nations' support of the right of all people to freely determine their political

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Entities List, there are over 200 sovereign states. 5 5 The 20th centurysaw a greatly expanded idea of sovereignty, supported by the theoreticalunderpinnings of legal theory. 156 One of these results was the idea that asovereign State had no clear limits to the exercise of its competencewithout having consented to those limits.157 The failures of this somewhatanarchical system resulted in the great tragedy of the First World War.158

Here actors acting under color of sovereign authority could mistakenlyset in motion events that would culminate in a war of global proportions.The American President, Woodrow Wilson, promoted the idea of sovereigncooperation via a League of Nations-an idea that was concurrentlysupported by General Smuts of South Africa.15 9 But as it is explained inFenwick, the idea of a League of Nations would require some subordinationof sovereignty to international law.1 60 However, the sovereignty ideastill dominated negotiations and the League emerged with a unanimityrule.161 If a single sovereign objected to a League determination on amatter within its competence, then the League would be unable to act.In this sense, the strong or thick version of sovereignty subverted theemerging and difficult idea of subjecting sovereignty to internationalobligation. The paralysis of the League is, in the judgment of sometheorists, one of the reasons that may have contributed to the SecondWorld War.

status and its failure to recognize a right of secession in general has been interpreted tomean that the U.N. supports self-determination only in the decolonization process,meaning that it the issue needs to be "integrally linked to the need to free peoples fromcolonial and 'alien' subjugation." Lloyd proclaims the idea that "under internationallaw, one state's recognition of another state will not make the new state internationallyaccepted, nor will one state's refusal to recognize another state keep the new state out ofthe international community." See David 0. Lloyd, Succession, Secession, and StateMembership in the United Nations, 26 N.Y.U. J. INT'L L. & POL. 761, 793-94 (1994).

155. See Permanent Missions to the United Nations, U.N. ST/SG/SER.A/298 (2008)(These statistics demonstrated the vitality of the expansion of sovereign members of theworld community.).

156. See generally supra note 1; see generally ANTONY ANGHIEJMPERIALISM,SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW (2008) (This studydemonstrated the use of the Eurocentric idea of sovereignty in non-European contexts.).

157. See generally id158. Id; see generally JAMES JOLL, THE ORIGINS OF THE FIRST WORLD WAR (Longman

1987).159. See generally F.S. NORTHEDGE, THE LEAGUE OF NATIONS: ITS LIFE AND TIMES,

1920-1946 (New York: Holmes & Meier 1986) (stating it is a concise story about thecreation of the League of Nations. Professor Northedge focuses on the reasons for thefailure of the of the League as a system of collective security.).

160. CHARLES FENWICK, INTERNATIONAL LAW 619-24 (1965) (discussing a shortintroduction to international legal arrangements after the First World War).

161. See Oscar Schachter, Towards a Theory of International Obligation, 8 VA. J.INT'L L. 300 (1968) (explaining a refined and systematic study of the theory of internationallaw obligations as a limiting source of authority on the conduct of sovereign states in theinternational environment).

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[VOL. 13: 429, 2012] Sovereignty in Theory and PracticeSAN DIEGO INT'L L.L

B. Sovereignty and International Obligation After theSecond World War

The Second World War was conducted under the principle that asovereign may determine whether (and if so, what limits) it would honorin the conduct of war. Hitler's Germany developed the idea that it wasinvolved in what was described as "total war."' 62 Under the guise ofsovereignty, there was the implicit claim that there were no rules fromthe law of war that could constrain the prerogatives of the sovereignty.Additionally, the Nazis were race-obsessed; and they viewed persons ofJewish ethnicity as candidates for physical extinction. They viewed theSlavic people as untermenschen (subhuman people) that could be treatedwith extreme cruelty and used in whatever terms the Nazis thought werein their own interest.' 64 Nazi absolutism developed the death camps inwhich vast numbers of Jews and other ethnic "expendables" wereexterminated.' 65 It should be added that, outside of Nazi atrocities, thegrowth of the totalitarian state-especially in Europe-had generatedmonumental atrocities but often these were targeted at their owncitizens.166 Thus, it has been estimated that Russia has accounted forsome 60 million murders by government.' 67 A significant aspect of this

162. See generally ALAN JOHN PERCIVALE TAYLOR, THE ORIGINS OF THE SECONDWORLD WAR (Simon & Schuster 1996); see generally WINSTON CHURCHILL, THE SECONDWORLD WAR (Golden Press 1960).

163. Id.; see also Korovin, Eugene, The Second World War and International Law,40 AM. J. INT'L L. 742 (1946); see YEHUDA BAUER, RETHINKING THE HOLOCAUST (2001)(reviewing an insightful overview and reconsideration of the Holocaust history andmeaning). Bauer uses his historiography and analysis to insist on an understanding ofthe political foundations and decision within the State that generated and executedpolicies creating the Holocaust. In a sense, it draws attention to the abuse of sovereignty.

164. See generally Leonid Rein, Untermenschen in SS Uniforms: 30th Waffen-Grenadier Division of Waffen SS, 20 J. SLAVIC MIL.STUD. 2 (2007); see generallyROBERTS. WISTRICH, HITLER AND THE HOLOCAUST (Random House Digital, Inc. 2001).

165. Id; see also Lawrence Douglas, Film as Witness: Screening Nazi ConcentrationCamps before the Nuremberg Tribunal, 65 YALE L.J. 449, 449-81 (1995).

166. See ROBERT LIFTON & ERIC MARKUSEN, THE GENOCIDAL MENTALITY: NAZIHOLOCAUST AND NUCLEAR THREAT (1990). This book brings the reality of thepsychopathological personalities and their role in the Holocaust or possible role in afuture nuclear Holocaust. In this sense, a realistic sense of sovereignty must account forthe personalities that are prone to genocide and mass destruction of human beings.

167. See R. J. RUMMEL, DEATH BY GOVERNMENT (1994). These studies are an indicationof the unlimited abuse of sovereignty as a world order problem. This study with thecopious statistical data underlines the dangers of sovereignty in the modem era. In short,the sovereign State with its implications for killing and mass murder needs some

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statistic is identified with Stalinistic totalitarianism.168 At the end ofWWII, considerable disquiet was generated about the notion of theabuse of State sovereignty and the scale of the horror that it generated.The most important effort that clearly establishes limits to what governmentcan do is reflected in the work of the Nuremburg Tribunal. 169 InNuremburg, the defense that the defendants were merely following theorders of the sovereign was rejected. 70 The court stressed that behindthe veil of the sovereign are the finite human agents of decision-making.'' A court of law could therefore penetrate the veil of the Stateand sovereign and hold the decision makers accountable. In historicterms, Nuremburg established a critical repudiation of the principle ofsovereign absolutism. It, in effect, repudiated legal theories of sovereigntythat sought to shield defendants from responsibility for mass murder.17 2

C. Threshold Empirical Ideas and Sovereignty

After the First World War, Harold Lasswell, a member of the ChicagoSchool, sought to reshape the study of politics as an empirical science.He wrote two important books that were to reshape the thinking aboutsovereignty in an empirical direction. The first of these books was hispioneering study titled Psychopathology and Politics. 173 If the study ofpolitics had been dominated by a historical/institutional focus of enquiry,Lasswell deliberately shifted that focus to the individual human participantsin politics.17 4 Some of those individuals, who were in leadership roles,whether covering themselves in the symbols of sovereign authority,could bring to the role of political leadership psychological deficits and

dimension of control and prevention to avoid the absolutism that may lead to massmurder and human destruction.

168. Id.; see generally HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM (HoughtonMifflin Harcourt 1973).

169. See Winston P. Nagan, Racism, Genocide, and Mass Murder: Toward a LegalTheory About Group Deprivation, 17 NAT'L BLACK L.J. 133 (2004) (rethinking theboundaries of human rights, humanitarian law and the scope of intervention. Drawsattention on the problem that states have indulged in unlimited atrocity justified as anexercise of sovereign absolutism seeking to generalize the major forms of human rights,humanitarian depravation and the problems generated by a thick version of sovereigntydeveloping a general social process of contextual foundations).

170. Id; see also supra note 166; see also Opinion and Judgment of the NurembergInternational Military Tribunal or the Trial of German Major War Criminals for WarCrimes and Crimes Against Humanity, Nuremberg, 30th September and 1st October,1946.

171. Id.172. Id.173. HAROLD D. LASSWELL, PSYCHOPATHOLOGY AND POLUIcs 240 (Chi. Univ. Press

1930).174. Id.

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dysfunctions.'75 These deficits could be a result of psychopathologicalpersonality orientations.' 76 If this were true, some political leaders, whowere psychopathological in personality orientation, would constitute adanger to the State and to world order.177 Therefore, there might be anurgent necessity for the development of a form of preventive politics.These insights penetrate the veil of sovereignty and anticipate the idea ofleadership accountability as well as restrains on the conduct of leadership;in short, restraints on sovereignty.'78 In order to make the theory morecredible there was a critical necessity to deconstruct the idea of thesovereign State, which was insulated in the symbolism of an impenetrablejuridical curtain of non-transparency. Advancing this agenda required aradical empiricism for unpacking the nature of the State to clearlyunderstand the nature of authority, control, and personality in theorganization and functions of the State. Lasswell's reconceptualizationof the State was that it was an empirically, observable manifold of events.However, the study of the State as a manifold of events, which involvesindividual participants, as well as participants in the aggregate, generated alifelong quest for an adequate theory and method of enquiry to completelyunderstand the interdependence and inter-determination of the individualand society or more generally the interrelationships between personalityand culture.'79 Lasswell saw, within the idea of the State as a manifoldof events, is the importance of the study of the individual personality"upon the meaning of the political process as a whole."so Such interactionsbetween person and culture operate within what Lasswell termed an"event manifold."' 8 ' Within the event manifold, Lasswell understood thecomplexity of what he was suggesting:

[s]ince the psychopathological approach to the individual is the most elaborateprocedure yet devised for the study of human personality, it would appear to

175. Id.176. Id.; see generally HAROLD D. LASSWELL, POWER AND PERSONALITY (1948); see

also HAROLD D. LASSWELL, THE ANALYSIS OF POLITICAL BEHAVIOR 195 (1948). On thedynamics of personality see LASSWELL & MCDOUGAL, JURISPRUDENCE FOR A FREE SOCIETY,Vol. I, at 591-630 (1992); on the political personality see id. at 681-82; on theconnection of personality to political culture see id at 683-722.

177. Id.178. Id.179. Id.180. Id.181. Id.

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raise in the most acute form the thorny problem of the relation between researchon the individual and research upon society. 182

The idea of the State as a manifold of events is in effect anappropriation from the Cambridge Logical School, particularly from thephilosophy of Alfred Whitehead. The idea essentially provided a flexiblearchitectural tool within which to, tentatively, identify and observeevents. According to Lasswell, because events were influenced by humandynamism, such events were frequently an emergent dynamic of societyobscured by formalistic or reified ideas of State and sovereignty. Indeed,Lasswell believed that to exclude the individual from understanding thesocial dynamics of the collectivity was to misdirect legitimate inquiry.According to Lasswell,

[i]t may be asserted at the outset that our thinking is vitiated unless we disposeof the fictitious cleavage which is sometimes supposed to separate the study ofthe "individual" from the study of "society." There is no cleavage; there is but agradual gradation of reference points. Some events have their locus in but asingle individual, and are unsuitable for comparative investigation. Someevents are widely distributed among individuals, like breathing, but have nospecial importance for interpersonal relations. Our starting-point as socialscientists is the statement of a distinctive event which is widely spread amonghuman beings who occupy a particular time-space manifold. 183

Having demolished the rationality of a familiar dualism between theindividual and the group or the State, Lasswell in effect set his agendaon the next important intellectual challenge: the individual in the globalenvironment. Lasswell sets out his thoughts in his now classic, WorldPolitics and Personal Insecurity.18 4 This piece was a study in the socialsciences and established an important place for the individual in thearena of world politics. By implication, the sovereign State clearly didnot monopolize this arena of action. The central idea was that the globalenvironment was a generator of meaning and understanding in terms ofsymbols that penetrated sovereign lines. 85 Those symbols sometimesinfluenced individual behavior because they could be perceivedsymbolically as threats to security and thus productive of individualanxiety.186 This work laid the foundations for a movement away fromthe monopoly of the sovereign State as the exclusive subject ofinternational law, and the sovereign State as the monopolizer ofinternational relations.187 Clearly, the individual was also participating

182. Id.18 3. Id.184. See HAROLD D. LASSWELL, WORLD POLITICS AND PERSONAL INSECURITY 5-8,

28-39, 64-66 (Free Press 1965).185. Id.18 6. Id.187. Id.

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in this universe and thus reflected an important human subjectivity interms of the values implicated in the global system.'" These ideas werenot a direct attack on sovereignty, but a framework that later developed,into a sophisticated empirical approach to mapping the salient features ofglobal processes critical to outcomes we describe as the sovereign nationState.

D. Sovereignty and the U.N. Charter

The Charter of the U.N. is an instrument by which members bothassert and limit their sovereignty. The Charter is more than a formalconstitution for the international community.190 It is an outcome of theworld, social, and power processes. It was a reaction to World War II-to the experience of total war and the Holocaust.' 9 ' As a preventativemeasure, the Charter placed limits on its members' sovereignty. 192

Yet, paradoxically, membership in the U.N. was an important means ofasserting sovereignty.193 An examination of the history and text of theCharter reveals this tension.' 94 The Charter was written for the sovereignnation-States of the world community.195 Many of those sovereigns hadbeen members of the U.N.'s predecessor, the League of Nations.'96 TheCharter also inherited a sizable body of international law that precededits entry into force. 97 Although the higher law aspirations of theorists

18 8. Id.189. Id.190. See United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS

XVI, available at http://www.unhcr.org/refworld/docid/3ae6b3930.html; Fassbender,Bardo The United Nations Charter As Constitution of the International Community, 36COLUM. J. TRANSNAT'L L. 529 (1998); see also Leland M. GOODRICH, ET AL., CHARTEROF THE UNITED NATIONS 290-309 (3d ed. 1969) (for a discussion of the history of theCharter of the United Nations and justifications as to why the Security Council is imbuedwith such power.).

191. Id.; see also Richard Goldstone, The United Nations' War Crimes Tribunals:An Assessment, 12 CONN. J. INT'L L. 227 (1996-1997); see also Henkin, Louis, HumanRights and State Sovereignty, 25 GA. J. INT'L & COMP. L. 31 (1995-1996).

192. Id.; see also Ira Leitel, The United Nations Charter as a Restraint Upon aNation's Right to Wage War, 36 BROOK. L. REv. 212 (1969-1970); see also LELAND M.GOODRICH, FROM LEAGUE OF NATIONS TO UNITED NATIONS. INTERNATIONAL ORGANIZATION1, 3-21 (1947).

193. Id; see generally supra note 156.194. Id.195. Id.196. Id.197. Id.

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such as Grotius, Vattel, and Pufendorf continued to have traction, thetradition of Moser and Martens positivism was very much in evidencesince the Charter represented a form of sovereign consensual obligation.The influence of this latter perspective is well illustrated by thePermanent Court of International Justice in the Lotus Case from whereinternational law inherited one of its very important principles.199 ThePCIJ stated that, "restrictions upon the sovereignty of States could not bepresumed." 2 0 0 This suggested that some deference would have to begiven to the expectation that there are no presumptive limitations tosovereignty in the international legal system. o0 It should also be notedthat the failure of the League of Nations was rooted in the principle that

202any individual sovereign State could exercise a veto in the League.The U.N. Charter, in effect, would have to respond to these and otherproblems in defining the scope of sovereignty and the force ofinternational obligation. In this case, the Court articulated a powerfulversion of strong or thick sovereignty indicating in effect that a sovereignhas to consent in order to be bound by an international obligation.2 03

The Court said that limits to the sovereignty of the State could not bepresumed.204 Thus, recognizing a limited form of international obligationthe Court stressed a presumption, which gave primacy of thicksovereignty to the nation State. Another important example of practiceduring this period emerged from the influential arbitral decision of theIsland ofPalmas Case where practice of international law strengthened thedefinition of sovereignty.20 5 In this arbitration, the arbitrator consideredthat mere discovery as a basis for title to the sovereign dominion andcontrol of the territory was weak and could not defeat the assertion ofsovereignty of the State that exercised continuous control and authority

198. Id.199. See S. S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 20-46, for

judicial authority for the idea of thick sovereignty. Its central proposition was that therewere no presumptive limits to sovereign authority in international law.

200. Id; see also Nagan and Hammer supra note 27.201. Id.; see also Stephan Hobe, The Era of Globalisation as a Challenge to

International Law, 40 DuQ. L. REv. 655 (2001-2002).202. Supra note 160; see also Stone, Julius, The Rule of Unanimity: The Practice of

the Council and Assembly of the League ofNations, 14 Brit. Y.B. Int'l L. 18 (1933); seealso Williams, John Fischer, League of Nations and Unanimity, 19 Am. J. Int'l L. 475(1925).

203. See generally id.204. Id.205. See Island of Palmas (Neth. v. U.S.), HAGUE CT. REP. (Scott) 83 (Perm. Ct. Arb.

1928) (establishing three important rules concerning island territorial disputes andbecoming one of the most highly influential precedents dealing with island territorialconflicts).

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over the land.206 In this sense, the arbitrator favored sovereignty asexercised by effective power versus sovereignty as a nominal legalisticassertion of titled by discovery. 20 7

IV. MODERN INTERNATIONAL SOVEREIGNTY

The Charter does not define sovereignty. The first words in thePreamble of the Charter introduces the key terms: "We the Peoples ofthe United Nations determined . . .,,208 The references to "Peoples" and"Nations," when coupled with the term "determined," suggest that thepeoples of the world are the ultimate source of international authority.Moreover, the peoples have "determined," or made an affirmative decision,to adopt the Charter of the U.N. because of certain problems and conditionsof global salience. 20 9 The member States of the U.N. are sovereign; theidea that sovereign legitimacy and authority under the Charter is derivedfrom the "Peoples" ultimately assumes that in the international community,sovereign national authority is itself, in some degree, constrained by theauthority of the people it seeks to symbolize or represent. In short, thetacit assumption of the authority of sovereignty is actually rooted in theperspectives of all peoples in the global community who are notobjects of sovereignty but subjects of it. Roosevelt expressed, in 1941,that the demands of the "Peoples" are expressed in four fundamentalprinciples on which the U.N. is premised: prevention of war, protectionof human rights and dignity, respect for social progress according to therule of law, and higher living standards and development for all. 10 The

206. Id.; see generally MICHAEL FOWLER & JULIE MARIE BUNCK, LAW, POWER, ANDTHE SOVEREIGN STATE: THE EVOLUTION AND APPLICATION OF THE CONCEPT OF SOVEREIGNTY(Penn State Press 1995).

207. Id.208. See U.N. Charter, pmbl. & art. 1-2, for an explanation of the scope of international

concern and the limitations on sovereignty, given the purposes of the U.N. to maintaininternational peace and security and to develop friendly relations among nations basedon respect for principles of equal rights and self-determination of peoples. States aresubject to a good faith obligation and are required to settle disputes through peacefulmethods.

209. See Thomas M. Franck & Faiza Patel, U.N. Police Action in Lieu of War: "TheOld Order Changeth ", 85 A.J.I.L. 63, 66-67 (1991) (documenting the modifications andpermutations of sovereignty under the U.N. Charter).

210. See 9 FRANKLIN DELANO ROOSEVELT, THE PUBLIC PAPERS AND ADDRESSES OFFRANKLIN D. ROOSEVELT: WAR-AND AID TO DEMOCRACIES 663 (The McMillan Co.,1941) (commonly known as "Four Freedoms Speech;" proclaiming U.N. pledge to maintaininternational peace and security, and to ensure that armed force shall not be used.Proclaims UN's goal of reaffirming "faith in fundamental human rights [and] the dignity

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concepts of "United" and "Nations" are to be understood conjunctively.211When read together, these terms seem to generate conflicts about thenature of sovereignty. One such conflict is evident: the key operativecomponents of the U.N. are sovereign nations. Accordingly, the efficacy ofthe U.N. should be measurable by examining the sum of its parts. It is abody of coordinate sovereigns; its institutional authority cannot aspire tomore authority than that reposing in the will of the sovereignsthemselves. Yet, on some occasions, the U.N. has the authority to invokean institutional capacity broader than the sum of its sovereign parts. Inshort, there is tension in the international constitutional system based onprinciples of international concern and obligation on the one hand andsovereign, territorial, and political independence on the other.

A. U.N. Charter's Membership, Obligations, and Responsibilities

A further criterion that strengthens the principle that the U.N. Charteris a sovereignty-dominated instrument is found in the membershipprovisions of Chapter 11.212 Article 3 states that the original members ofthe U.N. "shall be . . . states,"2 13 and Article 4(1) states that membershipin the United Nations is open to "all other peace-loving states whichaccept the obligations contained in the present Charter".2 14 Althoughmembership in the U.N. is exclusively a matter of State sovereignty, aninstitutional set of limits is imposed: the State must be "peace-loving,"accept all Charter obligations, and accept the obligations of internationallaw as developed under the Charter. Likewise, Article 6, though it maybe exercised only in highly unusual or exceptional circumstances,stipulates that a State may be expelled from the U.N. if it is a persistentviolator of the U.N. Charter.215 The scope of prohibited activity thatresults in expulsion may be controverted. For example, expulsion canentail the loss of recognition. Perhaps it might also impose a duty not to

and worth of the human person," and its pledge to "promote social progress," respect,and the equal rights of men and women and of nations large and small).

211. 1 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE-PEACE 286 (H. Lauterpachted., 8th ed. 1955) (asserting phrase "sovereign nation" entails two kinds of sovereigntypossessed by each State: dominium, or territorial sovereignty, which is supreme authorityover all persons, items, and acts within that state's territory, and imperium, or politicalsovereignty, which is supreme authority over all citizens of that State, be they at home orabroad).

212. U.N. Charter, Chapter II: Membership.213. U.N. Charter art. 3 (stipulating that the original members of the U.N. shall be

states that participated in the United Nations Conference and have signed and ratified thedocument).

214. U.N. Charter art. 4, para. 1.215. U.N. Charter art. 6 (targeting a State that is a persistent violator of the Charter

and which State may be expelled upon a recommendation of the Security Council).

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recognize an expelled entity, or its acts, in the context of internationalrelations and law. Whether such a procedure may be pushed to the limitof regime replacement may be hotly disputed, but at least in theory, thequestion of expulsion under Article 6 implicates the idea that thesovereign equality of States is conditioned by U.N. Charter obligationsand that a persistent violation of these obligations erodes the authority ofthe State. In short, the Charter supports and seeks to protect and advance aparticular form of good governance-oriented sovereignty. It also aims todiscourage other forms of government that seek to position sovereigntyabove Charter obligations. There are, of course, other Charter based limitson sovereignty. For example, Chapter IV of the Charter outlines thecomposition and workings of the General Assembly and gives theAssembly the power to highlight any issue by making it a matter forinternational discussion and elaboration. Specifically, Article 10 statesthat "[t]he General Assembly may discuss any questions or any matterswithin the scope of the . . . Charter".2 16 In addition, and in accordance toArticle 13, the Assembly has the power to initiate studies and makerecommendations.2 17 This "promotional" Assembly function may shapeinternational expectations. For example the Advisory Opinion of the ICJin 1962, was influenced by General Assembly recommendations. 218 Suchrecommendations may even create soft international law that might bebinding on sovereign States in limited circumstances.

216. U.N. Charter art. 10 (giving the General Assembly the competence to "discussany questions or matters within the scope of the .. . Charter").

217. U.N. Charter art. 13. The General Assembly has the competence to "initiatestudies and make recommendations for the purpose of . . . promoting internationalcooperation . . . and . . . the progressive development of international law." Thiscompetence extends to cooperation "in the economic, social, . . . educational and healthfields" as well as "human rights and fundamental freedoms."

218. Certain Expenses of the United Nations: Advisory Opinion, 1963 DUKE L.J.304, 304-306 & n.1 1 (1963). This case effectually upholds a constitutional innovationin the U.N. Charter-the so-called Uniting for Peace Resolution. The case validatedexpenses expended under the power of the Resolution.

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B. Security Council

The U.N. Charter Chapter V, Articles 24,219 and 27(3),220 and ChapterVII, Article 39,221 confer to the Security Council special security-relatedcompetences upon certain member States. The five permanent members

222exercise what some scholars deem to be super sovereign powers.These members have the special power of veto. Other elected membershave extra powers by virtue of membership in the Council, but do nothave unilateral veto power.223 The Security Council is given the primaryglobal responsibility for peace and security and has the competence toenforce its decisions peacefully through Chapter VI, Articles 41,224 viamilitary force under Article 42,225 or by the use of force Chapter VII,Article 51.226 It has the authority to make the determination as towhether there exists "any threat to the peace, breach of the peace, or actof aggression."2 2 7 The powers of the Security Council are neverthelesssubject to certain inherent powers of sovereign States. Article 51 of theCharter assures members "the inherent right of . .. self-defense . . . untilthe Security Council has taken the measures necessary to maintain

219. U.N. Charter art. 24, para. 1. The Article "conferls] on the Security Council[the] primary responsibility for ... maint[aining] . . . international peace and security."

220. U.N. Charter art. 27, para. 3. The decisions of the Security Council are affirmed bymajority vote with a concurrence of the five permanent members. See U.N. Charter art.23, para. 1.

221. U.N. Charter art. 39. The Security Council has the competence to determinethe existence of a threat or breach to international peace and security or of an act ofaggression, and shall recommend actions consistent with Articles 41 and 42.

222. LELAND M. GOODRICH ET AL., CHARTER OF THE UNITED NATIONS: COMMENTARYAND DOCUMENTS 290-309 (3d ed. 1969) (discussing the history of the Charter of theUnited Nations and offering justifications as to why the Security Council is imbued withsuch power).

223. BARDO FASSBENDER, U.N. SECURITY COUNCIL REFORM AND THE RIGHT OF VETO: ACONSTITUTIONAL PERSPECTIVE (Martinus Nijhoff Publishers 1998); see also Michael P.Scharf, Musical Chairs: The Dissolution of States and Membership in the U.N., 28CORNELL INT'L L.J. 29 (1995); see also Louis B. Sohn, Voting Procedures in U.N.Conferences for the Codification of International Law, 69 AM. J. INT'L LAW 310-53(1975).

224. U.N. Charter art. 41 (dealing with measures to give effect to its decisions thatdo not involve the use of armed force).

225. U.N. Charter art. 42. If the Security Council considers that the measures onArticle 41 are not effective it may take coercive action using air, sea, or land forces asunnecessary to restore and maintain international peace and security.

226. U.N. Charter art. 51. The International Court of Justice has not interpreted theterminology employed in Article 51 regarding a State's right to self-defense, especiallythe term, inherent. Accordingly, it can be interpreted using one or more of the establishedfour methods.

227. Id.

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international peace and security." The term "inherent" is ambiguous. 22 8 Itseems to make reference to the notion that Article 51 itself codifies this"inherent" right. "Inherent" may at the same time refer to rights, whichare not clearly articulated in Article 51 but instead exist antecedent to theCharter. It is one of the most contested provisions in the entire Charterand possibly in all of international law. 22 9 The Charter represents acontinuing constitutional process of conflict and collaboration withrespect to the basic architecture of international law and relations. 23 0

The contestation sometimes reflects a strong version of sovereignty, asshown in the Lotus case, thus seeking to weaken the scope of internationalobligation.2 3 1 At other times, it is the strength of the internationalobligation, supported by the critical powers within the U.N., which seems

228. GEORG SCHWARZENBERGER, A MANUAL OF INTERNATIONAL LAW 153-54 (4thed. 1960). Literal approach is comprised of a "plain meaning"; contextual reading ofambiguous words regardless of the drafter's intent. Systematic approach analyzes the"four corners" of the document and seeks to assign the document consistent phraseology.Intentional approach is comprised of a thorough analysis of the drafter's intent at thetime the document was signed. Functional or teleological approach considers thefunction and goals of the document throughout the passage of time.

229. See generally Alexander Orakhelashvili, Legal Consequences of the Constructionof a Wall in the Occupied Palestinian Territory, 11 J. CONFLICT & SEC. L. 119-39 (2006)(Request for advisory opinion); Summary of the Advisory Opinion of 9 July 2004 TheICJ writes in paragraph 139 of the opinion: "Under the terms of Article 51 of the Charterof the U.N.:

Nothing in the present Charter shall impair the inherent right of individual orcollective self-defence if an armed attack occurs against a Member of the U.N.,until the Security Council has taken measures necessary to maintaininternational peace and security.

Article 51 of the Charter thus recognizes the existence of an inherent right ofself-defence in the case of armed attack by one State against another State.However, Israel does not claim that the attacks against it are imputable to aforeign State. . . . Consequently, the Court concludes that Article 51 of theCharter has no relevance in this case.

See also Sean D. Murphy, Terrorism and the Concept of Armed Attack in Article 51 ofthe UN. Charter, 43 HARV. INT'L L.J. 41 (2002); see also Michael Glennon, The Fog ofLaw: Self-Defense, Inherence, and Incoherence in Article 51 of the United NationsCharter, 25 HARv. J.L. & PUB. POL'Y 539 (2001-2002).

230. See Winston P. Nagan, Nuclear Arsenals, International Lawyers, and theChallenge of the Millennium, 24 YALE J. INT'L L. 485 (1999). The lawfulness of thethreat or use of force using nuclear weapons was given a careful juridical appraisal in theICJ advisory opinion on this issue. A majority of the Court held that nuclear weaponsmight be used consistently with Article 51 only where the survival of the State was atstake under the prevailing State of international law conditions.

231. See generally supra notes 27 and 199.

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to weaken the scope of sovereignty under the Charter.2 32 The classictension between what counts as a matter of international concern underthe Charter and what is exclusively reserved to the domestic jurisdictionof a State generates controversies in the actual practice of internationallaw and relations. When the U.N. Charter is examined as a process ofcommunication and collaboration, it can be found that the scope ofinternational obligation and domestic sovereign competence is and willremain controverted.

C. The Practice ofInternational Law in the TwentiethCentury and Sovereignty

The early part of the twentieth century saw a breakdown in the statesystem as the world was enveloped in the WWI. 23 3 There was arecognition that sovereignty, unconstrained by some form of internationallegal obligation, could lead the way into another global catastrophe.234

However, the idealism, which generated the League of Nations and itsmodest mandate system for an extended legal obligation, could not

235overcome the strength of State commitment to sovereign autonomy.Thus, the League of Nations had a unanimity rule, which meant that asingle sovereign could block action in the League.236 The rise of Europeantotalitarianism accelerated the conflicts of the time precipitating a WWII. 2 37

After the WWII, there was a renewed resolve to strengthen the force ofinternational obligation and correspondingly constrain the scope ofsovereign absolutism. 2 3 8 The initial move in this direction was theCharter of Nuremberg, an international agreement among the allies thatthere would be a criminal justice response to the crimes committed bythe Axis Powers.239 We discuss this matter later in this entry. Thesecond significant development was the adoption of the U.N. Charter in

232. See generally id; see also Hilla, John, The Literary Effect of Sovereignty inInternational Law, 14 WIDENER L. REV. 77 (2008-2009).

233. Supra note 159.234. Id.235. See Ryan Goodman & Derek Jinks, Toward an Institutional Theory of

Sovereignty, 55 STAN. L. REV. 1749 (2003) (proposing a sociological model of sovereigntythat illuminates the ways in which global social constraints empower actors, includingstates and the ways in which institutions, including the bundle of rules and legitimatedidentities associated with state sovereignty constrain actors).

236. See generally supra note 202.237. Supra note 162-63.238. See generally id.; see generally supra notes 67 and 169..239. Theodor Meron, From Nuremberg to the Hague, 149 MIL. L. REV. 107 (1995);

see also Nerone, F. Regan, The Legality of Nuremberg, 4 DUQ. U. L. REV. 146 (1965-1966).

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the form of a treaty obligation.240 Consistent with the positivist view ofsovereignty, the Charter was essentially an agreement giving sovereignconsent to the compact.24 1 The compact established certain major purposesfor international, legal, and political order.242 A central element in theCharter was that it had constitutional characteristics in a global setting.243

In addition, within this framework two dynamic themes were developed.First, the Charter had to account for the sovereignty of its constituentmembers and define the scope of that sovereignty in terms of the domesticjurisdiction of the State over its internal affairs.244 This concept ofsovereignty was complemented by an effort to develop the jurisdictionalconcept of international concern. If a matter was exclusive to domesticjurisdiction, it was exclusively a matter of the primacy of sovereignty. Ifa matter triggered the elements of international concern, then sovereignautonomy would be shared, and, if necessary, constrained by the scopeof international jurisdictional concern.24 5 Notwithstanding this rethinking ofsovereign competences in the context of the political reality of globalinterdependence, the technical instrument used to develop these expectationscame in the form of a treaty which States adopted thereby indicatingtheir sovereign consent to be bound by it.246

D. The Treaty Model After the U.N. Charter: Sovereignty and theControl and Regulation of Global Spaces and Resources

One of the most important international instruments clarifying thereach sovereignty and the scope of international concern is indicated inthe Declaration On Principles of International Law Concerning FriendlyRelations and Cooperation among States in accordance with the Charterof the United Nations.247 This Declaration is not a Treaty.248 However,

240. Supra note 190-92.241. Id.242. Id.243. Id.244. Id.245. Id246. Id.; see also Randall, Kenneth C., Universal Jurisdiction under International

Law, 66 TEX. L. REv. 785 (1987-1988); see also Stephen D. Krasner, The Hole in theWhole: Sovereignty, Shared Sovereignty, and International Law, 25 MICH. J. INT'L L.1077 (2003-2004).

247. See United Nations, Declaration on Principles of International Law ConcerningFriendly Relations and Cooperation Among States in Accordance with the Charter of theUnited Nations, G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 18, U.N.Doc. A/8082, (Oct. 24, 1970). This document strengthens the sovereignty foundations of

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it is a Declaration based on the foundational principles of internationalconstitutionalism found in the Charter.2 49 The Declaration expresses, inmore concrete ways, matters that constrain States because these are mattersof international concern, and protects State sovereignty from inappropriateinterference, again because such interference also constitutes a matter ofinternational and constitutional concern.2 50 It could be suggested that theDeclaration is an effort to codify the principle of sovereignty under therule of law. Additionally, the breath of the Declaration, and its foundationin any international law obligation that requires cooperation in promotingthe values of the U.N. Charter, suggests that the Declaration, read in thelight of the U.N. Charter and the International Bill of Rights, is adevelopment in entrenching expectations of a global constitutionaldesign. Indeed, prior to the adoption of the U.N. Charter, there alreadyexisted important multilateral treaties, which refined the reach ofsovereign competence and established by agreement frameworks ofcollaborative competence over matters of transnational salience. 2 5 1 TheChicago Convention on International Civil Aviation is another internationaltreaty that has an effect on sovereignty.252 When sovereignty ideas weredeveloped, travel over air-space had not been imagined. The developmentof air travel required some rethinking of the ideas of territorialism,boundaries, regulation, and cooperation. Technological advances reachinginto space opened up another dimension of sovereignty and internationalconcern. Logically it could be said that the sovereign States bordersextend geometrically as far as the State can exercise its sovereignpowers in outer space and that there is a finite rational limit to theindefinite expansion of sovereignty into space. The Outer Space Treatyof 1967 is a recognition that whatever height above the Earth wedesignate, the space above that will be the common property of mankind's

international legal order by restricting interference with the appropriate internalfunctioning of a State and at the same time insists that the rules that constraintinappropriate State relations are in effect a positive duty under international law tocooperate in promoting friendly relations and cooperation.

248. Id; see also Robert Rosenstock, The Declaration of Principles of InternationalLaw Concerning Friendly Relations: A Survey, 65 AM. J. INT'L L. 713, 713-35 (1971).

249. Id.250. Id.251. See generally MAJOR PEACE TREATIES OF MODERN HISTORY 1648-1967 (Fred

L. Israel ed., 1967).252. See Chicago Convention on International Civil Aviation, Dec. 7, 1944, ICAO

Doc. 7300. Establishes a regime concerning the uses of air-space with a determination ofareas of air-space that are exclusive to the sovereign State and areas which are essentiallyexceptions to permit shared used and shared competences between the parties. Is anillustration of the use of a traditional idea of sovereignty and its malleability in the faceof technological advances.

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shared inheritance.253 Its first priority is the peaceful uses of space and ahigh priority is to keep weapons of mass destruction from been deployedin space.254 The Treaty also prohibits testing nuclear weapons in space.255

It also declares that celestial resources such as the Moon or accessibleplanets are a common heritage of mankind.256 The Treaty seeks to secure ademilitarization of space and to encourage scientific discovery.257

E. Sovereignty and the Spaces Relating to the Ocean's andPolar Regions of the World

The post-war period was significantly influenced by the developmentof scientific technologies that permitted the appropriation of resourcesnot traditionally included within the boundaries of the sovereign state.Among these resources were the seas and the Polar Regions. TheGeneva Conventions on the Law of the Sea of 1958, which expandedand constrained sovereignty by agreement, was a major instrument to theterritorial dimensions of sovereign competence.25 It added to theterritorial competence of the State adjoining continental shelf andclarified the principle of the freedom of the seas as an exercise ofsovereignty over the uses of the deep-sea ocean.25 9 It also sought tolimit excessive exploitation by limiting sovereignty rights in order toconserve the living resources of the high seas. Another important

253. See Treaty on Principles Governing the Activities of States in the Explorationand Use of Outer Space, including the Moon and Other Celestial Bodiesi, G.A. Res.2222 (XXI), U.N. GAOR, 21st Sess., Supp. No. , U.N. Doc. A/6431, (Dec. 19, 1966)(XXI 1967). It is another Treaty that reflects upon the impact of technological advanceson national sovereignty and international obligations. It provides for the establishment ofthe idea that the space that is technologically proximate to the Earth space communityshould be part of mankind's shared inheritance.

254. Id. Annex and Article IV.255. Id.256. Id. Article 1.257. Id. Annex and Article I, IV, and XI.258. Geneva Conventions on the Law of the Sea, Apr. 29, 1958, A/CONF. 131L.58,

Off. Rec. vol. 2 146; (UNCLOS I; Convention on the Territorial Sea and the ContiguousZone, Apr. 29, 1958, 516 U.N.T.S. 205; Convention on the High Seas, Apr. 29, 1958,450 U.N.T.S. I1; Convention on Fishing and Conservation of the Living Resources ofthe High Seas, Apr. 29, 1958, 559 U.N.T.S. 285; Convention on the Continental Shelf,Apr. 29, 1958, 499 U.N.T.S. 311)

This Treaty expanded territorial sovereignty so that territories under the oceans indifferent ways were brought within the sovereign powers of the State clarifying thestatus of the territorial Sea and the contiguous zone.

259. Id.260. Id

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resource was in the region of the Antarctic. 2 6 1 The Antarctic TreatySystem of 1959 recognizes that the presence on the Antarctic of nationStates' scientific teams occupying parts of this continent would exercisea limited form of occupancy/possessory rights consistent with the flagcarried by the research team.2 62 The recognition of these rights requiredcorresponding obligations. The presence of these teams was limited topeaceful activities, stressing the freedom of scientific inquiry and thedistribution of results. Subsequent developments had concerned mattersof agreement on conservation regulating mining activity and environmentalprotection. 26 3 Another important treaty that shaped sovereignty in inclusivespaces and resources is the most recent Convention on the Law of theSea of 1982.264 This document extended the territorial sea limits of theState, the contiguous zone adjoining the State, established a 200 nauticalmile exclusive economic zone for the State, and clarified the reach ofsovereign authority over the continental shelf. 2 6 5 It was confronted withhow to control and regulate certain resources on the high seas such asthe manganese nodules, which contain many of the critical minerals forthe modern industrial State and exist in high volume on the deep-seaocean floor.2 66 The practical problem was that under the traditional lawof the sea, a State could use its technology to exploit those commonresources for itself. States that monopolize the technology of deep-seamining could exploit these resources solely for their own benefit.2 67 TheConvention sought to solve this problem by creating a Deep Seabed

261. See generally ARTHUR H. WESTING, GLOBAL RESOURCES AND INTERNATIONALCONFLIcr: ENVIRONMENTAL FACTORS IN STRATEGIC POLICY AND ACTION (StockholmInternational Peace Research Institute, Oxford Univ. Press 1986).

262. Antarctic Treaty, Dec. 1, 1959. This Treaty recognizes that the presence onthe Antarctic of nation States' scientific teams occupying parts of this continent wouldexercise a limited form of occupancy/possessory rights consistent with the flag carriedby the research team. The recognition of these rights required corresponding obligationslike the limited presence for peaceful activities. It stresses the freedom of scientificinquiry and the distribution of results. See also Steven J. Burton, New Stresses on theAntarctic Treaty: Toward International Legal Institutions Governing Antarctic Resources, 65VA. L. REV. 421 (1979).

263. Id.264. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833

U.N.T.S. 397 (1982) (UNCLOS III). Significant international effort to change andmodify the sovereign competence of the State over certain aspects of the spatialdimension of sovereignty. It extended the territorial sea limits of the State, the contiguouszone adjoining the State, established a 200 nautical mile exclusive economic zone for theState and it clarified the reach of sovereign authority over the continental shelf.

265. Id.266. Id; see also Barbara Ellen Heim, Exploring the Last Frontiers for Mineral

Resources: A Comparison of International Law Regarding the Deep Seabed, OuterSpace, andAntarctica, 23 VAND. J. TRANSNAT'L L. 819 (1990-1991).

267. Id.

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Authority, which could license mining in return for fees which couldthen be distributed through the U.N. system.268

V. CONTEMPORARY JURIS CONSULTS RELATING TO THE LEGALTHEORY ASPECTS OF SOVEREIGNTY: U.K. SCHOLARSHIP

A. The Work and Contributions ofH.L.A. Hart

One of the most important contributions to the jurisprudence ofsovereignty is reflected in the work of the former Professor ofJurisprudence in Oxford, H.L.A. Hart. 269 Hart provided a criticaldeconstruction of the Austin Theory of Sovereignty as a foundation ofjurisprudence. 270 His critique exposed the problem that Austin system oforders back by threats totally obliterated one of the most centralconcepts in jurisprudence, the concept of obligation; coercion mayoblige one to act in a certain way but in no way can it suggest that onehas an obligation to act in such a manner.27 1 It would seem that theconcept of obligation has an affinity with the idea of authority.2 72 Austin'ssovereignty functions in the absence of authority.273 Thus, implicit inthe Hart view was the idea that authority and obligation were central tothe idea of law and the idea of the governing authority of law.274 Hartsubstituted for the idea of sovereignty a complex structure of interdependentrules. For him law was the union of primary and secondary rules, andamong the secondary rules was a master secondary rule of recognition,

268. Id.; see also Ian Bezpalko, The Deep Seabed: Customary Law Codified, 44NAT. RESOURCES J. 867 (2004); see also Jan Schneider, Codification and ProgressiveDevelopment ofInternational Environmental Law at the Third United Nations Conference onthe Law of the Sea: The Environmental Aspects of the Treaty Review, 20 COLUM. J.TRANSNAT'L L. 243 (1981); see also Allen, Philip A. III, Law of the Sea: The Delimitation ofthe Maritime Boundary between the United States and the Bahamas, 33 U. FLA. L. REV.207 (1980-1981).

269. Supra note 17.270. Id; see also H.L.A. Hart, THE CONCEPT OF LAW (1961) (Draws attention to

this and other weaknesses in Austin's theory. He therefore reconstructs the foundationsof a legal system in terms of a more complex architecture of different kind of legal rules.Within the system of rules, there is a master "secondary rule of recognition" that permitsus to identify what is law and what is not.).

271. Id.272. Id.; see also H. L. A. Hart, Are There Any Natural Rights?, 64 PHIL. REV. 175-

91(1955).273. Supra note 10.274. See generally supra note 270.

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which identified valid rules and laws.275 It can be inferred that Hart'smodel was partly inspired by the significant voting right cases in SouthAfrica in the 1950's.276 In the case of Harris v. Donges of 1952, theAppellate Division of the South African Supreme Court provided anovel clarification of the scope and limits of ParliamentarySovereignty.277 In a prior decision, the Court had ruled that Parliament,bicamerally, had passed a law to deprive black South Africans of theirvoting rights.278 After the war, Parliament, again using the sameprocedure, stripped colored voters of their voting rights. This time thecourt ruled that Parliament had acted unconstitutionally.27 9 The theoryof the court was that the prior precedent had not asked the rightquestions concerning what is "Parliament" and what is an "act ofParliament." 2 80 The answer to the question was, firstly, that entrenchedclauses of the South African Constitution required the Parliament to situnicamerally and that it would be able to terminate constitutional rightswith a two thirds majority. 28 1 The sovereignty of Parliament was subjectto a pre-existing rule of recognition determining what Parliament wasand how it was to function in order to exercise sovereign powers.2 8 2

Hart's insight was probably inspired by the judgment of the AppellateDivision of the South African Supreme Court.

B. The Contributions oflan Brownlie

Brownlie provides two important chapters on the legal aspects ofsovereignty. He deals with sovereignty as a subject of international lawand examines the legal criteria for determining statehood as well asvarious aspects of continued statehood, including the complex processesof the recognition of States and governments and the complex

275. Id.276. Id.; see also J. C. Hicks, The Liar Paradox in Legal Reasoning, 29 CAMBRIDGE

L.J. 275, 275-91 (1971).277. Harris v. Donges, [1952] 1 T.L.R. 1245. Coloured voters deprived of their

voting rights relying on an earlier decision that determined the idea of ParliamentarySovereignty as the supreme expression of law making in the state. Its constitutionalitywas challenged by suggesting that the wrong questions were addressed.

278. Id.; see generally IAN LOVELAND, BY DUE PROCESS OF LAW?: RACIALDISCRIMINATION AND THE RIGHT TO VOTE IN SouTH AFRICA 1855-1960 (Hart Publishing1999).

279. Id.280. Id.281. Julious Lewin, Power, Law, and Race Relations in South Africa, 30 POL. Q.

389, 389-99 (1959).282. Id.; see also Hamish R. Gray, The Sovereignty of Parliament Today, 10 U.

TORONTO L.J. 54, 54-72 (1953).283. See generally supra note 270; see also Denis V. Cowen, Agenda for

Jurisprudence, 49 CORNELL L. Q. 609 (1963-1964).

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permutations of the territorial aspects of sovereignty.284 One aspect ofsovereignty that requires clarification is the extent of the definition ofthe reach of territorial sovereignty. 285 This would have to take intoaccount the existence of other aspects of territory in the global communityand their precise legal statuses, for example, are they trust territories; are

286there territories that are classified as res nullius or res communis.Territory weaves into the juristic concept of jurisdiction and the extentof jurisdiction.287 Sovereignty and territory also have an overlappingmeaning with the civil law idea of ownership and title.288 Internationallawyers distinguish this issue as the difference between imperium anddominium.289 The idea of title and imperium reflects interminable problemsand conflicts, such as the conflict between India and Pakistan overKashmir 290 and the status of Taiwan, which exists somewhat autonomouslyfrom the People's Republic of China but which the PRC claims is anintegral part of China.291 In the 1960's China invaded India because itrejected the boundary understandings that India accepted as a colonialinheritance.292 The problems of sovereignty and jurisdiction also raise

284. Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 57-201, 105-67(7th ed. 2008) (outlining many problems in which there are legal variations on the waysovereign title is exercised. It provides an overview of the imperium exercise over thesub-soil, air spaces and internal waters as well as an analysis concerning the transfer andacquisition of territory and a careful legal appraisal of the way in which title affects thecreation and transfer of territorial sovereignty).

285. Id.286. Christopher C. Joyner, Legal Implications of the Concept of the Common

Heritage of Mankind, 35 INT'L & COMP. L. Q. 190-99 (1986); see also Ian Brownlie,Maintenance of International Peace and Security in Outer Space, 40 BRIT. Y.B. INT'L L.1 (1964).

287. Id288. See generally JOHN HENRY MERRYMAN & ROGELIO PlREZ-PERDOMO, THE CIVIL

LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF EUROPE AND LATIN AMERICA(Stanford Univ. Press 2007); see also Emeka Duruigbo, Permanent Sovereignty andPeoples' Ownership of Natural Resources in International Law, 38 GEO. WASH. INT'L L.Rev. 33 (2006); see also L. Benjamin Ederington, Property as a Natural Institution: TheSeparation of Property from Sovereignty in International Law, 13 AM. U. INT'L L. REV.263 (1997-1998); see also Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8 (1927-1928).

289. Id.290. Id.; see generally SUNIL KHILNANI, THE IDEA OF INDIA (Macmillan 1999).291. Id.; see also MARK ANTON ALLEE, LAW AND LOCAL SOCIETY IN LATE IMPERIAL

CHINA: NORTHERN TAIWAN IN THE NINETEENTH CENTURY (Stanford Univ. Press 1994).292. Id; see generally JONATHAN HOLSLAG, CHINA AND INDIA: PROSPECTS FOR PEACE

(Columbia Univ. Press 2010); see also Q. CHINA, STATE, SOVEREIGNTY, AND THE PEOPLE:A COMPARISON OF THE "RULE OF LAW" IN CHINA AND INDIA (Cambridge Univ. Press(2009).

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complexities where the sovereign concedes a long-term control to anothersovereign, such as the status of Guantanamo. Concepts of possessionand use such as the status the U.S. enjoyed in Panama also required acomplex understanding of the law of possession and the scope of uses.Brownlie outlines many problems in which there are legal variations onthe way sovereign title is exercised and provides an overview of theimperium exercise over the sub-soil, air spaces, and internal waters. Healso discusses concerns about the transfer and acquisition of territory,providing a careful legal appraisal of the way in which title affects thecreation and transfer of territorial sovereignty. Brownlie also explores anumber of concepts derived from the civil law dealing with scope ofproperty and entitlements including the role of prescription and novationand clarifies the principle that territorial sovereignty cannot be exercisedover territory as a consequence of conquest by force of arms. Brownlie'sapproach is firmly rooted in the positivist tradition of examininginternational legal phenomena through the lens of operational practice.

C. The Contributions ofNico Schrifver and Anthony Carty

A more ambitious study from a theoretical point of view is found inthe work of Nico Schrijver. Schrijver's take off point is the GeneralAssembly Resolution, which articulates the idea of permanent sovereigntyover natural resources,2 93 a claim that grew out of the processes ofdecolonization and represented a claim to thick sovereignty by newStates over their natural resources.294 This claim, which evolved into thebroader claims for a new international economic order, was contested byforeign investor States who disputed its currency.295 Nevertheless, it hashad traction in context of environmental and sustainable development,which along international trade and investment, have been undergoingmodification and change.

In the context of the theory of sovereignty, one of the most originalcontributions can also be found in the work of Anthony Carty.29 6 Cartyexamined international law generally with an important preference for

293. See generally Nico Schrijver, SOVEREIGNTY OVER NATURAL RESOURCES(1997). The take off point is the General Assembly Resolution articulated in the idea ofpermanent sovereignty over natural resources which grew out of the processes ofdecolonization and represented a claim of thick sovereignty by new States over naturalresources. It has traction in context of environmental and sustainable development.

294. Id.295. Id.296. See generally ANTHONY CARTY, PHILOSOPHY OF INTERNATIONAL LAW (2007);

ANTHONY CARTY, PHILOSOPHY OF INTERNATIONAL LAW (Edinburgh Univ. Press 2007)(examining international law generally with important preference to sovereignty mainlyin the context of the development of practice and theory in the UK.).

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sovereignty mainly in the context of the development of practice andtheory in the U.K. He explained that the inheritance of nineteenthcentury scholarship was really directed by statesmen seeking to reinforcethe importance of the rule of law.297 He also notes that leading statesmen ofthe time were more concerned about enhancing British greatness byforce and influence of British power and resources. Further, Englishinternational lawyers tended to accept the basic positivist position, whichseparated law from morality and made the analysis of law as it is themost prestigious task of an international lawyer.298 This was anapproach that also appealed to the canons of the practice of law becauseit underscored the objectivity of law.299 More recently, there has beenconsiderable ferment about the foundations of international law andsovereignty. He draws attention to Professor Allott's work, whichperhaps inspires him about a more penetrating concept of "internationalsociety." 3 o Allot and Carty were clearly influenced by the New HavenSchool's concept of international society-there is a responsible network ofindividuals interacting in a web of international interpersonal relations.301Carty's describes his suggestion as a preliminary, introductory outline,which is "the bare bones of an ethnographic phenomenology of humanconduct in which communication with words are critical".302 Assuggested, we later seek to produce a map of what this ethnographicphenomenology of human conduct might look like.

297. Id.298. Id; see also ANTHONY CARTY, English Constitutional Law from a Postmodernist

Perspective, in DANGEROUS SUPPLEMENTS: RESISTANCE AND RENEWAL IN JURISPRUDENCE(Peter Fitzpatrick ed., Duke Univ. Press 1991).

299. See generally id.; see also Anthony Carty, Critical International Law: RecentTrends in the Theory ofInternational Law, 2 EUR. J. INT'L L. 66 (1991).

300. See generally id.; see also Anthony Carty, Social Theory and the "Vanishing" ofInternational Law: A Review Article, 41 INT'L & COMP. L. Q. 939-45 (1992); seegenerally PHILIP ALLOTT, New International Law: The First Lecture of the AcademicYear 20, THEORY AND INTERNATIONAL LAW: AN INTRODUCTION 107 (Colin Warbrick &Anthony Carty eds., 1992).

301. Id; see also Koji Teraya, For the Rights ofNobodies: The Globalising Tensionbetween Human Rights and Democracy, 38 VICTORIA U. WELLINGTON L. REv. 299(2007); see also Simpson, Gerry, Imagined Consent: Democratic Liberalism inInternational Legal Theory, 15 J. AUSTL. Y.B. INT'L 103 (1994).

302. See generally supra note 300.

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D. The Work and Contributions ofNeil MacCormickand Philip Allot

Another important contribution to sovereignty is the work of NeilMacCormick. MacCormick's theory is not as far reaching as that ofCarty's. His focus is on the European compact and the subordination ofEuropean sovereignties to that compact.3 0 3 He raises the question ofwhether there is a reconfiguration of Europe. The challenge is how toeffectively conceptualize this development. MacCormick thinks thatconceptualization as a European commonwealth might help. In a sense,it is the implications of moral and political values that might make thisappealing. It seems to stimulate active political participation or the ideasof popular self-management and idea that self-government and participatorydemocracy would be part of such an understanding. Additionally,MacCormick grapples with the problem of commonwealth on one sideand nationalism on the other. Modem European identity reflects strongversions of national solidarity, but the question that remains open iswhether a pan European identity may moderate and constrain appeals tomore parochial national identities. At the back of this question is theextent to which nationalism is central to the idea of sovereignty in thenation State and whether the new European experiment will transcendthat. The MacCormick approach also implicitly suggests the need for abetter conceptualization of the foundations of sovereignty and internationallegal order. Allot is one the most theoretically advanced in thinkingabout the theory of international law from the perspective of a U.K.academic. 30 4 Although there are important differences in the way heconceptualizes central ideas relating to society as an important predicatefor constitutionalism and the well-being in the global community, hisapproach is the closest of a U.K. scholar to the approach of the NewHaven School. His stress on the interrelationship between society andthe construction of a constitutional order on a global basis is a significantadvance in British legal theory and, as mentioned before, Allott's work

303. NEIL MACCORMICK, QUESTIONING SOVEREIGNTY: LAW STATE AND NATION INTHE EUROPEAN COMMONWEALTH (1999) (focusing on the European compact and thesubordination of European sovereignties to that compact raising the question of there is areconfiguration in Europe that impacts upon sovereignty. He sees the challengeintellectually as how to effectively conceptualize this development. He thinks thatconceptualization as a European commonwealth might help.).

304. PHILIP ALLOTr, EUNOMIA: NEW ORDER FOR A NEW WORLD (1990). One ofthe most theoretically advanced in thinking about the theory of international law fromthe perspective of a UK academic. Although there are important differences in the wayhe conceptualizes central ideas relating to society as an important predicate forconstitutionalism and for the outcomes of well-being in the global community hisapproach is the closest of a U.K. scholar to the approach of the New Haven School.

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inspired other scholars to a more penetrating concept of internationalsociety. Baeyens shows how recent developments in European thinkingon Pan-European governance suggest a skepticism of the tendency tofunction within the EU on an inter-sovereignty, intergovernmental model.305

The Shadow European Council takes the position that is meant totranscend MacCormick's concerns with national parochialism. 306 Baeyensexplains how their recommended Action Plan contains an investmentprogram for the transformation of the European economy, a federal actfor economic governance, and a change in European mechanisms for bankswith a more global vision.30 7 European leaders suggest that European unitymay represent "the best hope the human race has for bring the worldtogether around the twin challenges of global warming and enacting aworldwide economy that can provide a descent standard of living for 6.5billion people" and they conclude with the question: "if Europe doesn'tlead, who will?" 308 The ideas that are emerging have an affinity with theapproach of Allot as well as the approach of the New Haven School.309

305. See generally ANTONi KUKLINSKI, The Renaissance of European StrategicThinking, LOWER SILESIAN FOUNDATION FOR REGIONAL DEVELOPMENT (Paper for thesecond Lower Silesian Conference, Jun. 16-19, 2011), http://forum.pl/upload/tmle/file/Eurpa%20Quo%OVadis%201SBN.pdf.

306. Id.; see also for example Wolfgang Streeck, Citizenship Under RegimeCompetition: The Case of the "European Works Councils" (MPIfG Working Paper 97/3Mar. 1997).

307. See generally Herman Baeyens, European Strategic Planning in the XX Century,in EUROPE-THE GLOBAL CHALLENGES VOL. 1 (AntoniKuklinski et al. eds., 2005),http://www.clubofrome.at/archive/pdf/kuk-twinl.pdf. In this paper Baeyens focus onEuropean strategic planning in the 21st century to consolidate the European Union andthe implications for its enhance role in world affairs. Baeyens focuses on developing thestrategies for this possible future. These views would seem to significantly transformsovereignty as it is currently understood. In this paper Baeyens focus on Europeanstrategic planning in the 21st century to consolidate the European Union and theimplications for it's enhance role in world affairs. Baeyens focuses on developing thestrategies for this possible future. These views would seem to significantly transformsovereignty as it is currently understood.

308. Id.; see also Steven Hill, My Lunch at the European Commission: "Why isEurope Losing the Public Relations Battle to China?", Soc. EUR. J. (2010), available athttp://www.social-europe.eu/2010/1 2/my-lunch-at-the-european-commission-why-is-europe-losing-the-public-relations-battle-to-china/.

309. See generally supra notes 42 and 300; see also Richard A. Falk, Casting theSpell: The New Haven School of International Law Jurisprudence for a Free Society:Studies in Law, Science, and Policy by Harold D. Lasswell & Myres S. McDougal, 104YALE L.J. 7, 1991-2008 (1995); see also W. Michael Reisman, The View from the NewHaven School of International Law, Proceedings of the Annual Meeting (AmericanSociety of International Law), Vol. 86, pp. 118-25 (Apr. 1-4, 1992).

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E. The Contributions of Colin Warbrick and Stephen Tierney

Warbrick and Tierney have contributed to the idea of sovereignty inthe international legal community from a contemporary perspective.They set to grapple with the adequacy of the traditional concept ofsovereignty, as the way in which international law defines itsfundamental target community of sovereign nation states. 310 The state ofsovereignty, whose meaning is still influenced by Austin, cannot providean adequate explanation of the effective role that international law playin both domestic and international legal order.3 11 There is a recognitionthat international law reflects an expansion of the idea of authority andsovereignty cannot account for this as a theoretical matter.3 12 This worknotes the growth of institutions of international salience that serve as thefoundations of authority behind much of modern international law. Theissue they confront is that they still try to understand the changingcharacter of authority in modern international law within the limits ofthe idea that sovereignt is still the most reliable source of law based onauthority and control. They suggest that the boundaries of legal orderinternationally have shifted from rigid territorial sovereignty to theexercise of sovereign competence in functional terms.314 Additionally,following traditional positivism, they argue that the transnational sourceof authority in these institutions involves a transfer of sovereign authoritythat is voluntary; but sovereign authority still ultimate authority."'1 Thisraises the question about whether the quantum of sovereignty voluntarilytransferred to the international level requires a significant rethinking ofsovereignty itself in its relationship with international law. The difficultywith the sovereignty/authority assumption is that there is a single locusof authority-a criterion of the validation of a law as authoritative.

310. See generally TOWARDS AN 'INTERNATIONAL LEGAL COMMUNITY'? THESOVEREIGNTY OF STATES AND THE SOVEREIGNTY OF INTERNATIONAL LAW (Colin Warbrick

& Stephen Tierney eds., 2006). It sets as a primary task the effort to grapple with theadequacy of the traditional concept of sovereignty, as the way in which internationaldefines its fundamental target community: a community of sovereign nation states. Italso recognizes that sovereignty, whose main meaning, still influenced by Austin, cannotprovide an adequate explanation of the effective role that international law, plays in bothdomestic and international legal order. It sets as a primary task the effort to grapple withthe adequacy of the traditional concept of sovereignty, as the way in which internationaldefines its fundamental target community: a community of sovereign nation states. Italso recognizes that sovereignty, whose main meaning still influenced by Austin cannotprovide an adequate explanation of the effective role that international law, plays in bothdomestic and international legal order.

311. Id.; supra note 1.312. Id.313. Id.314. Id.315. Id.

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There is a clear and prudent recognition that the international legalsystem is in transition and thus, the traditional international legal communityof sovereign States model is no longer a serviceable model. 16 There is aneed for a new paradigm. 317 The phenomenon of globalization has madethe traditional boundaries of the sovereign State porous. 3 18 Thiscontribution is an important step in attempting to get a better descriptionof the global social process, which includes a changing role of Statesovereignty. The concept of contextually mapping this process andunderstanding its role in the context of the global power and constitutiveprocess provides empirical insights into the foundations of internationallaw in an age of globalization.31 9

VI. SOVEREIGNTY, INSTITUTIONAL COMPETENCE AND U.S. PRACTICE

A. The Background to the Development of the Sovereignty Idea inUS. Legal Practice and Scholarship

The United States was a new State and one whose creation stood as achallenge to the international status quo dominated by Europeansovereigns. 320 As a consequence, the earlier American State reflectedcertain cautions about its relations with States whose political orientationcould be seen as antagonistic to the Republican/Democratic values thatemerged from the American Revolution. In this sense, there is an emergentperspective that gives strength to both, the value of isolationism 321 as

316. See J. L. Cohen, Whose Sovereignty? Empire Versus International Law, 18ETHICS & INT'L AFF. 1-24 (2004); see also W. Michael Reisman, Sovereignty andHuman Rights in Contemporary International Law, 84 AM. J. INT'L L. 866, 866-76(1990).

317. Id; Nagan and Hammer supra note 27; see also Christoph Schreuer, TheWarning of the Sovereign State: Towards a New Paradigm for International Law, 4 EUR.J. INT'L L. 447 (1993); see also Philippe Cullet, Differential Treatment in InternationalLaw: Towards a New Paradigm of Inter-state Relations, 10(3) EUR J INT'L L. 549, 549-82 (1999).

318. See generally id.319. Id.; see also Winston P. Nagan & Craig Hammer, The Rise of Outsourcing in

Modern Warfare: Sovereign Power, Private Military Actors, and the ConstitutiveProcess, 60 ME. L. REV. 429 (2008); see generally Douglas Torgerson, Promoting thePolicy Orientation: Lasswell in Context, in HANDBOOK OF PUBLIC POLICY ANALYSIS:THEORY, POLITICS, AND METHODS (Frank Fischer, Gerald Miller, Mara S. Sidney eds.,CRC Press 2006).

320. See HOWARD ZINN, PEOPLE'S HISTORY OF THE UNITED STATES 59-76 (1999).321. See generally Bernard Fensterwald Jr., The Anatomy of American "Isolationism"

and Expansionism. Part 1, 2 J. CONFLICT RES. 111, 111-39 (1958).

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well as the value of American Exceptionalism. 322 These ideas wouldfind legitimacy in the mantle of emergent American national identity, aswell as the idea of an American sovereignty necessary to defend andpromote Americanism.3 23 However, the political arrangements ofthe new State were built upon skepticism of power and the fear of theabuse of power in the new political order.3 24 Thus, the new politicalorder based upon an articulate division of powers between the differentbranches of the government and between the States and the Federalgovernment provided a blueprint for the future. However, it was not ablueprint that could cover every possible future contingency. Hence, thepractice of American democracy and the allocation of competence withinthe body politic and its implications in the nation's foreign relationsremained matters of contestation in the political and legal arena. It wasin the legal arena that the Supreme Court could carve out a major rolefor itself as the ultimate decision maker on certain matters that requiredConstitutional interpretation.325 The Court asserted a competence withinthe scope of its reviewing authority based on the importance of thenatural law tradition, which had been developing in Europe and England.326

The natural law tradition permitted the legal profession to appropriate theimportant processes of reasoned elaboration in the context of vigorousadversarial argument of legal proceedings to justify its limited but importantsphere of ultimate authority. 27 The 19th century jurisprudence of theSupreme Court, is therefore, a representation of the importance of theapplication of practical circumstances and ideas of right reason to thesolution of problems where a rational interpretation of the Constitutionis required.

In the latter part of the 19th century, the United States came under theinfluence of the importance of science in the cultural understandings ofevolving US culture. 32 8 Science came in the form of positivism, and inlaw, positivism expressed itself in terms of Austin's theory of sovereignty.

322. See generally Harold H. Koh, On American Exceptionalism, 55 STAN. L. REV.1479, 1480-1527 (2003).

323. See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION160 (1967).

324. See Harry N. Scheiber, Federalism and Legal Process: Historical andContemporary Analysis of the American System, 14 LAW & Soc'Y REv. 690, 713, 663-722 (1979-1980).

325. See generally Skelly J. Wright, Role of the Supreme Court in a DemocraticSociety-Judicial Activism or Restraint, 54 CORNELL L. REv. 1, 1-28 (1968-1969).

326. CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 131-90(1922).

327. See NOBERTO BOBBIO, THOMAS HOBBES AND THE NATURAL LAW TRADITION

156-60 (Univ. of Chicago Press 1993).328. See generally George H. Daniels, The Pure-Science Ideal and Democratic

Culture, 156 SCIENCE 1699 passim (1967).

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[VOL. 13: 429, 2012] Sovereignty in Theory and PracticeSAN DIEGO INT'L L.1

The science behind Austin's theory was that the ultimate source oflaw-the principle that validated law-was to be found in an empiricaland finite sovereign.329 The sovereign was the source of all law. 33 Thisidea did not provide an easy fit for a political system that had alreadycreated space for natural law ideas as an intrinsic part of how law ismade and applied.3 3' Austin's model therefore would have to be modifiedto more appropriately fit American circumstances. 332 Clearly, the Austinianmodel had an influence on such late 19th century thinkers as OliverWendell Holmes, Jr., John Chipman Gray, and James Bradley Thayer.333

1. James Bradley Thayer

Thayer was a distinguished Harvard Law professor. His most famousarticle was The Origin and Scope of the American Doctrine ofConstitutional Law.334 This article was a powerful application of thesovereignty ideas associated with legal positivism to the practice andtheory of American Constitutional law. The central point of Thayer'sapproach was to vest as much sovereignty as possible in the competenceof the legislatures. 335 This is an idea that has an affinity with the idea ofParliamentary sovereignty. 336 The nuanced version of this is that giventhe existence of a rigid Constitution, sovereignty vest with legislatureswhich are the primary determinants of the constitutionality of laws.3 37

Thayer carves out a space for the Courts. This space significantly limitsthe discretionary invocation of natural law. 338 The reviewing power ofthe Court is limited to the idea of a clear error test.339 There is no de

329. Supra note 139.330. Id.331. Id.332. Id.; see also Wilfrid E. Rumble, Legal Positivism of John Austin and the

Realist Movement in American Jurisprudence, CORNELL L. REV. 986 (1980-81).333. Supra note 1; see generally WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE

ORIGIN OF MODERN AMERICAN LEGAL EDUCATION (Oxford Univ. Press 1994).334. JAMES BRADLEY THAYER, The Origin and Scope of the American Doctrine of

Constitutional Law, in LEGAL ESSAYS 1 (1908).335. G. Edward White, Revisiting James Bradley Thayer, 88 NW. U. L. REV. 48

(1993-1994); see generally JAMES BRADLEY THAYER, LEGAL ESSAYS (The Boston BookCo. 1908); see generally JAMES BRADLEY THAYER, THE ORIGIN AND SCOPE OF THEAMERICAN DOCTRINE OF CONSTITUTIONAL LAW (Little, Brown 1893).

336. Id.; see generally Thomas C. Grey, Thayer's Doctrine: Notes on Its Origin,Scope, and Present Implications, 88 Nw. U. L. REV. 28 (1993).

337. Id.338. Id.339. Id.

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novo reviewing power. Thus, Thayer brings into the discourse aboutAmerican sovereignty the importance of legislature sovereignty and thesecondary nature of legal sovereignty at least as expressed in the Courts.340

Thayer's theory has had an enormously influential track record in thedevelopment of American ideas of sovereign authority. 34 1 The idea thatthe judiciary has a place in the universe of sovereign authority representsa place that can be developed within the larger legal culture only underprinciples of self-restraint. In short, to the extent that judges use rightreason, that reason should be deployed to rationally underscore the limitsof judicial authority.

2. John Chipman Gray

John Chipman Gray's work examines more directly the state of legaltheory and the influence of legal positivism in the 19th century. 34 2 Hismost important work was The Nature and Sources of Law.34 3 Gray'swork essentially grappled critically with Austin's sovereignty idea,which he felt was insufficiently empirical to guide proper inquiry intothe operational workings of the machinery of government.344 Graynotes that the supreme governors of society, who control and regulatethe wills of their fellows, represent a complex empirical question, whichoften defies easy definition and identification. 34 5 The State essentiallycreates an architecture to which the machinery of government is attached.To add Austin's sovereign as somehow pre-estate and pre-machinery ofgovernment, simply adds an idea that is not amenable to empiricalspecification, but in fact, undiscoverable and intangible.347 The idea isdifficult, "purely academic" and irrelevant. Gray also took the positionthat law is normally declared by the composition of rules which originate injudicial organs.3 48 Those rules prescribe the determination of rights andduties. 349 Gray also took the position that statutes were not law but only

340. Id.341. Id.342. See generally ROLAND GRAY, JOHN CHIPMAN GRAY (Priv. print, D.B. Updike

1917).343. Id; see generally JOHN CHIPMAN GRAY, THE NATURE AND SOURCES OF LAW

(Roland Gray ed., 2nd ed. 1921).344. Id.345. Id; see generally Stephen A. Siegel, John Chipman Gray and the Moral Basis

of Classical Legal Thought, 86 IOWA L. REv. 1513 (2001).346. Id.347. See generally supra notes 139 & 335.348. Id.; see also Stephen A. Siegel, John Chipman Gray and the Moral Basis of

Classical Legal Thought, 86 IOWA L. REv. 1513 (2000-2001); see generally JOHNCHIPMAN GRAY, THE NATURE AND SOURCES OF THE LAW (The Macmillan Co. 1921).

349. Id.

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a source of law. 350 They became law by judicial construction fromwhich a determination of allocation of rights and duties resulted. 351 Tothe extent that there is some sort of sovereign, it will be repose in theSupreme Court, composed of nine old men, some of conceivably limitedintelligence. From Gray we see that the positivism of Austin isrejected as unrealistically formalistic and a new kind of positivism emergesdrawn from the complex of experience of modem governance.352 Austin'soriginal science has essentially been given a different empirical orientation.Gray's orientation, effectually seeks to undermine the formalisticimplications of Austin's approach. It does not say that the clarificationof authority and control is irrelevant. In fact, it seeks to empiricallyestablish the nature and sources of law on the basis of empirical realism. 353

3. Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes was a Harvard Law professor and later, anAssociate Justice of the Supreme Court of United States. Holmes was asignificant and original legal thinker and his contributions to the practiceand the theory of law in United States are without peer.354 Holmes wasalso a figure influenced by the ubiquity of the influence of science onpolitical and legal culture in the U.S. in the late 19th century. He wastherefore, influenced by the general orientation of positivism and inparticular, the objective of positivism to state the law as it is, and not asit ought to be. The particular gloss on Holmes' positivism is the imprintof philosophical pragmatism on Holmes' development of legal thoughtin the direction of a form of positivism. We can distill two forms ofpositivism in Holmes' work. First, Holmes was committed to a moreempirical view of the sources and validity of law. As he stated "the lifeof the law has not been logic; it has been experience". 355 Additionally,his great skepticism of the alleged virtues of logic, as reflected inAustinian positivism, was rejected when Holmes suggested that as a

350. Id.351. Id.352. Id.353. Id.354. See generally G. EDWARD WHITE, OLIVER WENDELL HOLMES, JR. (Oxford

Univ. Press 2006).355. Id.; see generally OLIVER. WENDELL. HOLMES, JR., THE COMMON LAW (1881).

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Judge, he could give any conclusion, a logical form.356 Thus, we see aconcern that interpretation reflected certain skepticism of doctrine, andtherefore there would be skepticism of the source of legal doctrine, thesovereign. Holmes on the other hand was also concerned that theimplications of his skepticism might undermine the idea central to scientificapproach-that law must be objective and objectively determinable.357

This latter idea is essentially Austinian. In a sense, Holmes promotedboth of these ideas and never sought to secure a theoretical reconciliationbetween the life of the law as experience and the objectivity of law asdetermined by factors more akin to logical extrapolation. 358 In practice,Holmes was impeccably opposed to the natural inclinations of judgeswho using natural law ideas were in effect putting into judicial formtheir subjective ideological or idiosyncratic preferences.3 59 In the case ofLochner v. New York, Holmes pointed out that "a Constitution is notintended to embody a particular economic theory," which relied on naturallaw.360 Years later, in the dissenting opinion of S. Pac. Co. v. Jensen,Holmes added that "[t]he common law is not a brooding omnipresencein the sky and . . . judges are not independent mouthpieces of theinfinite."361 In cases like Lochner, Holmes followed Thayer by insistingthat the legislative supremacy of the States be respected. In this sense,Holmes in practice endorsed a version of State legislature sovereignty. 36 2

Holmes' great influence on American legal practice ultimately prevailedin the famous case of Erie v. Tomkins.36 3 Holmes had been a critic of theidea that federal judges could create the common law out of natural lawthinking. In Erie the Court finally agreed and established the importanceof law as emanating from a sovereign State and not from the imaginativeinsights of natural law thinking in judges.364 The pathway plotted byHolmes, Gray, and Thayer provided a rich foundation from which ideasof sovereignty and constitutionalism could evolve in American theoryand practice.

356. Id.; see Oliver Wendell Holmes, The Path of the Law, 110 HARV. L. REV. 991,991-1009 (1997).

357. Id.358. Id.359. Id.; see also O.W. Holmes, Natural Law, 32 HARV. L. REv. 40 (1918-1919).360. Lochner v. New York, 198 U.S. 45, 75 (1905).361. Id.; see S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J.,

dissenting).; see generally FRANCIS BIDDLE, JUSTICE HOLMES, NATURAL LAW, AND THESUPREME COURT 49 (1960).

362. Gerald Leonard, Holmes on the Lochner Court, 85 B.U. L. REV. 1001, 1013(2005).

363. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).364. Id.

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B. Hart and Sacks: The Legal Process Approach

The approach of H.L.A. Hart may be contrasted with the approach ofthe idea of sovereignty in the work of two Harvard Professors: Hart andSacks, who developed a legal process approach to legal theory. 365 Thatapproach provides insights into the nature of sovereignty itself. Centralto their approach is the sense that traditional positivism, asking thequestion of what is law, essentially misdirected the focus of relevantinquiry and description. 366 In their view, a better focus is developed ifwe change the question to what is a legal question.367 In effect, onecould not answer this question without taking into account the idea that alegal question must be differentiated from a legislative, an administrative,and an executive question.368 This therefore refers to institutions ofgovernance and therefore the unpacking of sovereignty was tied to theprocesses by which human beings settled problems in society. On theidea of law as institutional settlement, and according to Hart:

It is a by no means indefensible view of law to think of it as consisting mostimportantly of an operating system of general propositions, established byauthority of the society, answering the questions of the who and how withrespect to all methods of concern to the members of society, and so makingpossible their peaceable settlement. . . [L]aw comprises (although it may not beconfined to) a series of institutionalized processes for settling by authority of thegroup various types of questions of concern to the group.369

From this perspective, they develop a principle of institutional settlement,which is a foundation of governance in the modern state.3 70 Some

365. See generally HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS:BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (1994). This study is notdirectly focused on the elucidation of sovereignty as such. However, these authors haveclarified the conception of sovereignty from a functional point of view by underscoring adeeper understanding of the appropriate sphere of institutional competences in themodem state. This suggests that for different purposes different institutions may becharged with making final or ultimate decisions in the body politic.

366. Id.; see also Vincent A. Wellman, Dworkin and the Legal Process Tradition:The Legacy offHart & Sacks, 29 ARIz. L. REv. 413 (1987).

367. Id.368. Id.369. See Henry M. Hart, Note on some Essentials ofa Working Theory ofLaw (Hart

Papers, Box 1, Folder 1, 1950); see also HENRY M. HART, NOTES AND OTHER MATERIALSFOR THE STUDY OF LEGISLATION (1950). Legal theory, however, still generates importantinsights into the nature of sovereignty; see also Winston P. Nagan, Lasswell andMcDougal and Contemporary Theories ofJustice, presentation at Yale, Sept. 14, 2010.

370. Richard H. Pildes, Forms of Formalism, 66 U. CHI. L. REv. 607 (1999); seealso Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 VAND.

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problems are quintessentially juridical.37 ' Thus, the institution specializedto generating distinctively legal decisions will be the ultimate institutionalauthority for the expression of final legal decisions.372 In this sense,some ultimate decision-making competence is vested with distinctivelylegal institutions. The institution was competence specialized to legislationwill be the ultimate authority of legislative expression. The same couldbe indicated for administrative and executive competence. In this sense,sovereignty, seen in the complex of institutional competences of specializedinstitutions of governance, is not undifferentiated but an aspect of sovereignpower, which is vested in different institutional mechanisms whosecompetences may be objectively delineated as legislative, judicial,administrative, or vested with executive authority.373 This approach tothe idea of sovereignty is more complex and requires a searchingdetermination of the precise locus of ultimate authority in terms of thespecialized institutional context.3 7 4

C. Carl Schmitt: Sovereignty Rooted in the Political Exception

Although Schmitt was German, his ideas about sovereignty, and thepolitical exception have had influence on the American theory andpractice of sovereignty. Carl Schmitt was a philosophic theorist ofsovereignty during the Third Reich.37 His ideas about sovereignty andits above the law placement in the political culture of the State haveimportant parallels in the developing discourse in the United States aboutthe scope of presidential authority and power. His views have attractedthe attention of American theorists. Schmitt developed his view ofsovereignty on the concept described as "the exception".376 This ideasuggests that the sovereign or executive may invoke the idea of exceptionalpowers which are distinct from the general theory of the State. InSchmitt's view, the normal condition of the functions of the theory of aState, rides with the existence of the idea of the "exception." Theexception is in effect intrinsic to the idea of a normal State. In his view,

L. REV. 953 (1994); see also William N. Eskridge, Jr. & Philip P. Frickey, The Makingof the Legal Process, 107 HARV. L. REV. 2031 (1993-1994).

371. Id.372. Id.373. Id.374. Id.375. MICHAEL ARGYLE, THE PSYCHOLOGY OF HAPPINESS 274 (Routledge 2d ed. 2001)

(1987).376. GEORGE SCHWAB, THE CHALLENGE OF THE EXCEPTION: AN INTRODUCTION TO

THE POLITICAL IDEAS OF CARL SCHMITT BETWEEN 1921 AND 1936 (Duncker & Humblot1970).

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the normal legal order of a State depends on the existence of an exception.37 7

The exception is based on the continuing existence of an existential threat tothe State and it is the sovereign that must decide on the exception.37 8 Inshort, the political life of a State comprises allies and enemies. For thepurpose of Statecraft, "an enemy exists only when at least potentially,one fighting collectively of people confronts another similar collectivity."3 79

In this sense, the political reality of the State always confronts the issueof the survival of the group. This reality is explained as follows:

The political is the most intense and extreme antagonism, and every concreteantagonism becomes that much more political the closer it approaches the mostextreme point, that of the friend-enemy grouping. *** [A]s an ever presentpossibility [war] is the leading presupposition which determines in acharacteristic way human action and thinking and hereby creates a specificallypolitical behavior.*** A world in which the possibility of war is utterlyeliminated, a completely pacified globe, would be a world without thedistinction between friend and enemy and hence a world without politics. 380

Schmitt's view bases the supremacy of the exception on the supremacy ofpolitics and power.381 Thus, the exception, as rooted in the competenceof the executive, is not dependent on law for its authority but on theconditions of power and conflict, which are implicitly pre-legal.38 2 Thecentral idea is that in an emergency, the power to decide based on theexception accepts its normal superiority over law on the basis that thesuspension of the law is justified by the pre-legal right to self-preservation. 383 Schmitt's view is a powerful justification for theexercise of extraordinary powers, which he regards as ordinary, byexecutive authority. This is a tempting view for executive officers but itmay not be an adequate explanation of the interplay of power, legitimacy,and the constitutional foundations of a rule of law State. In a latersection, we draw on insights from the New Haven School, which dealsempirically with the problem of power and the problem of constitutingauthority using the methods of contextual mapping. Nonetheless, Schmitt's

377. Id.378. Id379. Id; see CARL SCHMITT, THE CONCEPT OF THE POLITICAL 10 (George Schwab

trans., Univ. of Chicago Press 2007).380. Id. at 29, 34-35.381. Id.; see generally THE CHALLENGE OF CARL SCHMITT (Chantal Mouffe ed.,

Verso 1999).382. Id.383. Id.

487


view provides support for theorists who seek to enlarge executive poweron the unitary presidency theory. 3 84

D. Hannah Arendt: Sovereignty Rooted in People's Expectations

Another important contribution to the clarification of the sovereigntyconcept is found in the scholarship of Hannah Arendt. Arendt looks atpolitics differently from Schmitt. The give and take of politics is generatedby the interaction and internal bondings of members of the community.Hence, politics is not myopically a matter of outside threats to survival.She expresses these ideas as follows:

The man of the American Revolution, on the contrary, understood by the veryopposite of a pre-political natural violence. To them, power came into beingwhen and where people would get together and bind themselves throughpromises, covenants, and mutual pledges; only such power which rested onreciprocity and mutuality, was real power and legitimate.***385

In Arendt's view, law is in part constitutive of politics because it"produces the arena where politics occurs."386 Additionally it "definesthe space in which men live with one another without using force". 3 87 Inher view law is not post-political, it is pre-political. This is a socialscientist's way of justifying the supremacy of law and the limitations ofclaims to sovereign absolutism implicit in Schmitt. Again, Arendt isdealing with the interplay of politics and law but suggests the notion thatsocial forces and power relations somehow pre-politically create law andthus the space for politics. This too is an approach that is notunproblematic. The relationships between the social processes, whichgenerate outcomes of effective power, also generate the processes by whicheffective power is moderated by understandings of mutual cooperationand self-interests among power brokers. It is here that understandingsabout managing power and expectations generate the framework of legalorders for political space. We refer again to this issue when we outlinethe social and power process background to law and map those processesonto the idea of a constitutive process. Additionally, the dynamics ofpower and power generated understandings operate across State lines aswell.

384. Id.385. HANNAH ARENDT, ON REVOLUTION 173 (Penguin Books 2006) (1963).386. HANNAH ARENDT, THE PROMISE OF POLITICS 181 (Random House Digital, Inc.

2009).387. Id.

488



E. Justice Samuel A. Alito Jr.: The Unitary Executive

Justice Alito is generally regarded as the initiator of the so-called"unitary executive theory." " It is a theory developed in the context ofconstitutional interpretation, but appears to have a strong affinity withthe philosophical reflections of the German political theorist CarlSchmitt. 389 It is not clear whether Alito was aware of Schmitt's workand was influenced by him or whether he had come to a positionconcerning the powers of the President that have strong parallels withthe philosophical justification given by Schmitt about the idea ofunfettered powers vesting in the executive. In any event, we reproducedSchmitt's fundamental ideas above because they provide a broaderphilosophical justification for Alito's theory of the unitary executivebased on a textual analysis of the Constitution.390 Alito was a lawyer inthe Office of Legal Counsel. His tenure with the Reagan JusticeDepartment came in the aftermath of the still lingering political effectsof the removal of Republican President Richard Nixon from office.Nixon's demise in the context of the Watergate Scandal resulted instronger assertions of legislative supremacy to constrain the abuse ofpower by the executive."' President Ford sought to find ways to reestablishpresidential power without unduly drawing the attention of Congress toit.392 When Reagan came into office, there remained an urge withthis new Republican Administration that presidential powers, which hadbeen reduced in the fall of Nixon, should be recaptured by the executivebranch.393 Alito was well placed to consider what legal strategies mightbe used to advance the cause of presidential power within the frameworkof executive authority.

The central problem Alito saw as a lawyer representing the executiveinterests was the expansion of congressional power and a corresponding

388. JUDGE SAMUEL ALITO, Administrative Law and Regulation: Presidential Oversightand the Administrative State, in 2 ENGAGE: THE JOURNAL OF THE FEDERALIST SOCIETY'SPRACTICE GROUPS 12 (2001).

389. Jeffrey Steinberg, Judge Samuel Alito and The 'Fiihrerprinzip', EXECUTIVEINTELLIGENCE REV. 5 (2006).

390. See generally, Peter M. Shane, Legislative Delegation, The Unitary Executive,and the Legitimacy ofthe Administrative State 33 HARV. J.L. & PUB. POL'Y 103 (2010).

391. Barton J. Bernstein, The Road to Wategate and Beyond: The Growth andAbuse ofExecutive Authority since 1940,40 LAW&CONTEMP. PROBS. 58,74 (1976).

392. Arthur M. Schlesinger Jr., The Constitution and Presidential Leadership, 47MD. L. REv. 54, 65 (1987-88).

393. Id

489


limitation of presidential power.3 94 His approach was therefore to developan interpretative logic that sought to narrowly characterize the scope ofcongressional power. Additionally, in order to expand the power of theexecutive, he provided a bold, unjudicially -tested theory of theexecutive, which had implicated that its boundaries were expansive andunlimited. In Alito's view, the unitary executive theory "best capturesthe meaning of the Constitution's text and structure."3 95 Central to hisanalysis is the ideal that the text of the Constitution vests "all executivepower" in "the President." 396 Alito additionally stressed that the nationalinterest required "a vigorous executive."3 97 Prime reliance is placed onArticle 2 of the Constitution, which stipulates "the executive power shallbe vested in the President of the United States of America."398 There isno guidance as to the scope of this power. The Constitution also stipulatesthat "the President shall be commander in chief of the Army and theNavy .. .,.399 However, the Constitution also, and separately assigns thepower to declare war, raise Armies, and regulate the taking of prisonersto Congress. 40 0 Essentially the Constitution is much more explicit aboutspecifying the powers of Congress. Implicit in this fact is the idea thatwhat is not specifically enumerated is presumptively outside of thecompetence of Congress. On the other hand, the vesting of competencein the executive is over all matters of an executive character (howeverthis is defined). Since the specific allocation of competence to thePresident is not enumerated in detail, it is an appropriate Constitutionalinterpretation to give as expansive an interpretation of executive poweras can plausibly be claimed. Professor Steven Calabresi has been a strongsupporter of Judge Alito's theory. According to Calabresi, "[u]nitaryexecutive theorists read th[e Constitution] . . . as creating a hierarchical,unified executive department under the direct control of the President....The practical consequence of this theory is dramatic: it rendersunconstitutional independent agencies and counsels to the extent thatthey exercise discretionary executive power."40 1 The importance of theAlito view lies in the fact that he was widely supported by a legal interest

394. Charles F. Schumer, Under Attack: Congressional Power in the Twenty-FirstCentury, 1 HARV. L. & POL'Y REv. 3, 3-4, 36 (2007).

395. See Steinberg, supra note 389, at 4.396. PEOPLE FOR THE AMERICAN WAY, THE RECORD AND LEGAL PHILOSOPHY OF

SAMUEL ALITO: "No ONE TO THE RIGHT OF SAMUEL ALITO ON THIS COURT" 21, SPECIALREPORT (2006).

397. Id.398. U.S. CONST. art. 11, § 1.399. U.S. CoNsT. art. II, § 2.400. U.S. CONST. art. I, § 8.401. Steven A. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary

Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1165-66 (1992).

490



group identified with conservative causes: The Federalist Society. Oneof the techniques used to secure the allocation of greater competence tothe executive at the expense of the Congress was the Alito's suggestionof the use of presidential signing statements. 402

After the momentous events of 9/11, the issue of the scope of thePresident's powers under emergency conditions became an acute issue.403

In addition to these conditions, Vice President Cheney brought to theoffice of the executive a long memory of the loss of presidential powersin the aftermath of Watergate.404 The events of 9/11 provided an idealjustification for the executive to reclaim these powers. In the conductof the war against terrorism, the administration's lawyers placed reliance onthe unitary presidency theory for broad assertions of unaccountablepower.4 06 The President's lawyers maintained that the unitary nature ofthe power of the executive could not be limited by treaty obligations orcongressional legislation, which purported to govern the treatment ofenemy prisoners.407 On September 25, 2001, John Yoo wrote that "thecentralization of authority in the President alone is particularly crucial inmatters of national defense, war, and foreign policy, where a unitaryexecutive can evaluate threats, consider policy choices, and can mobilizenational resources with a speed and energy that is far superior to anyother branch."408 An even stronger claim emerged from Assistant AttomeyGeneral Jay Bybee in August 2002.409 Bybee's advice to the President wasthat "even if an interrogation method were to arguably violate (an anti-

402. Marc N. Garber & Kurt A. Wimmer, Presidential Signing Statements asInterpretations of Legislative Intent: An Executive Aggrandizement of Power, 24 HARV.J. ON LEGIS. 363, 366 (1987).

403. Id; see generally JOHN Yoo, THE POWERS OF WAR AND PEACE: THE CONSTITUTIONAND FOREIGN AFFAIRS AFTER 9/11 (Univ. of Chicago Press 2006).

404. Id.; see also Bruce P. Montgomery, Congressional Oversight: Vice PresidentRichard B. Cheney's Executive Branch Triumph, 20 POL. ScI. Q. 581, 581-617(2005/2006); see also Mark J. Rozell, Executive Privilege Revived: Secrecy and ConflictDuring the Bush Presidency, 52 DUKE L.J. 403 (2002-2003).

405. Id.406. Id; see also David Schultz, Democracy on Trial: Terrorism, Crime, and National

Security Policy in a Post 9-11 World, 38 GOLDEN GATE U. L. REV. 195 (2008).407. Id.408. Robert J. Delahunty, John C. Yoo, The President's constitutional authority to

conduct military operations against terrorist organizations and the nations that harboror support them, 25 HARV. J.L. & PUB. POL'Y 487,492 (2002).

409. The Bybee Torture Memo, Memorandum for Alberto R. Gonzales Counsel tothe President, Re. Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (2002).

491


torture law), the statute would be unconstitutional if it impermissiblyencroached on the President's power to conduct a military campaign."OSo reliant was the Bush policies in conducting the war on terror on theunitary presidency theory that according to Calabresi, "if the theory werewrong there would be no way the Bush administration's anti-terrorismpolicies could be constitutionally justified."1'" The technique that JudgeAlito effectively advocated to the executive was the President's use ofsigning statements to exempt himself from otherwise lawfullyenacted congressional legislation.4 12 The Bush administration claimedthe inherent power to authorize the torture of military detainees inviolation of U.S. law and Treaty obligations. The President's use of thetechnique of signing statements attached to bills that were become U.S.law involved the President issuing over a hundred signing statements,which in effect exempted him from those laws when he felt that theyinterfered with these unitary executive powers. The unitary theory reliedon a claim of powers inherent in the idea of executive authority. Itshould be noted however that the concept of "inherent" is itself litteredwith flexibility and therefore represents an unpredictable and undefinedambit for a unified authority claim by the President. The Presidentrelied on his inherent powers as Commander in Chief to authorizewarrantless domestic spying in violation of the Foreign IntelligenceServices Act.4 13 He also claimed inherent authority to have subordinatestorture military detainees in violation of U.S. law and treaty obligations.

Although Alito's supporters, like Yoo, did provide functionaljustifications for the assertion of executive powers in the context ofnational security emergencies, even these justifications should beunderstood in terms of little noticed historical fact about the Constitution.414

The American Revolution was fought and justified on the basis of theconcentrated, arbitrary powers of the Monarch.4 15 A major purpose inthe drafting of the Constitution was to avoid the concentration of powerand to provide for a text that would provide guidance concerning thebalance of power.416 Moreover, the founders were deeply concerned to

410. Id. at 31.411. Jess Bravin, Judge Alito's View of the Presidency: Expansive Powers; A

Debate Over Terror Tactics: Court Pick Endorsed Theory of Far-Reaching Authority;Tenet ofBush White House, WALL ST. J., Jan. 5, 2006, at Al.

412. Marc N. Garber & Kurt A. Wimmer, supra note 402, at 366.413. See generally Federal Intelligence Surveillance Act § 36, 50 U.S.C.A. § 1801,

Pub.L. 95-511, 92 Stat. 1783, (enacted 50 U.S.C. ch.36, S. 1566 (2006)).414. See generally supra notes 409-13; infra notes 415-19.415. See generally BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN

REVOLUTION (Harvard Univ. Press 1992).416. See generally JAMES M. BECK, THE CONSTITUTION OF THE UNITED STATES,

(Kessinger Pub. 2004).

492



not create an American Monarchy, an executive that would fit the role ofa monarch-like sovereign.417 This major purpose, which guided the draftingof the Constitution, appears to be a value that remains unconsidered by theproponents of the executive theory.418

Jeffrey Steinberg, writing in Executive Intelligence Review, has arguedthat the unitary executive idea, which carries strong support from ultraright wing constituencies, represents in contemporary terms, the idea ofthe Ftihrerprinzip version of a sovereignty dominated executive identifiedwith Cal Schmitt. 419 Schmitt placed ultimate sovereignty in the Fuhreras a position above the law.42 Steinberg notes that Schmitt's view hasbeen used to legitimate the emergence of totalitarian regimes in for exampleFranco's Spain and Pinochet's Chile and he sees the Schmitt's footprinton the Alito/Bush/Chaney reconstruction of an above the law office ofthe President. 42 1 He refers specifically to the McCain amendment, whichbanned the torture of American held prisoners in the war on terrorism. 422

The President signing order simply permitted him to ignore the bill's banon torture.423 This was a bill passed by a bipartisan, veto proof majority.424

The dangers of the unitary executive idea, as with the dangers of CarlSchmitt's Filhrerprinzip, are well expressed by Steinberg as follows:

These are the issues before the U.S. Senate in the case of Judge Alito. Thedoctrine of the "unitary executive" promoted by Alito is a carbon copy of thedoctrine of law devised by Carl Schmitt to justify the Hitler dictatorship ofFebruary 1933 and the Pinochet dictatorship of Sept. 11, 1973. In both theHitler and Pinochet cases, Schmitt was "on the scene." As the leading Germanjurist of the 1920s and '30s, Schmitt wrote the legal opinion justifying Hitler'sReichstag fire coup. Schmitt argued that the "charismatic leader" derivesunbridled power from "the people" in time of crisis, and that any form ofgovernment, based on a system of checks and balances, consensus, andseparation of power, is illegitimate, because it stands in the way of the absoluteruler's responsibility to "protect the people.

417. Id418. Id.419. See generally Federal Intelligence Surveillance Act § 36, 50 U.S.C.A. § 1801,

Pub.L. 95-511, 92 Stat. 1783, (enacted 50 U.S.C. ch.36, S. 1566 (2006)).420. Id.421. Id.; see also Jeffrey Steinberg, Cheney and His Patsy, Bush, Face

Impeachment Furor, EIRNATIONAL (Dec. 30, 2005).422. Id.423. Id; supra note 419.424. Id; see also Koh, Harold Hongju, Can the President be Torturer in Chief 81

IND. L.J. 1145 (2006).

493


In the case of the Pinochet coup in Chile, Schmitt's student-protdg6 JaimeGuzman, argued that the government had to use violence to impose order.Guzman was the sole source of legal justificaion for the Pinochet coup anddictatorship, and he insisted that violence was a precondition for success. Ineffect, Schmitt acolyte Guzman ran fascist Chile-in the name of the samedoctrine of "unitary executive" power that Schmitt had earlier codified in theFilhrerprinzip. It is the same doctrine that Cheney et al. seek to impose today onthe U.S.A.

This is fascism-pure and simple, and it must be crushed, now, if the UnitedStates is to survive as a constitutional republic. 425

Justice Alito's idea of the unitary presidency has an uncanny affinity,as with the sovereignty theory of law espoused by John Austin in theearly 19th century. Here Alito appears to salvage the notion of the Presidentas the ultimate sovereign and the near ultimate lawgiver. In this sense, itcould be urge that the theory of sovereignty, its precise scope and relevance,while controverted, is very much a part of a vital national debate aboutthe fundamentals of authority and control, which touch on political culture,legal culture, and the basic social values of United States.

F. John Yoo: The Unitary Presidency

John Yoo was an Assistant Attorney General in the office of LegalCounsel.426 In short, he was a lawyer for the executive branch. Yoogained prominence for a number of memoranda he offered, which sought toexpand the powers of the executive so as to make them superior to thoseof the legislature or the judiciary.4 27 At the heart of these memorandawas the theory of the executive, which came to be known as the theoryof the "unitary executive.'A2 8 This theory carried the implication thatwhen exercising certain emergency powers, the executive was exercisingultimate, non-accountable sovereign powers.429 There appeared to be anaffinity to the Carl Schmitt view of the exception being a normal part ofthe theory of the State.4 30 Yoo consolidated these views in a recent book,which provides a vigorous defense of the unitary presidency idea. InYoo's view, Hamilton and the other Federalists understood the executive

425. Supra note 389, at 5-6.426. See Jim Wilson, JOHN Yoo, N.Y. TIMES, May 4, 2011.427. Id.428. See John C. Yoo, Unitary, Executive, or Both?, 77 U. CHI. L. REv. 1935 (2009),

available at http://works.bepress.com/johnyoo50.429. Id.430. Id.; see generally SIBYLLE SCHEIPERS, PRISONERS IN WAR (Oxford Univ. Press

2010); see also Kim Lane Scheppele, Small Emergencies, 40 GA. L. REv. 835 (2005-2006).

431. See generally John Yoo, CRISIS AND COMMAND: A HISTORY OF EXECUTIVE POWERFROM GEORGE WASHINGTON To GEORGE W. BUSH vii-xiii (2010).

494



to be functionally best matched in speech, unity, and decisiveness to theunpredictable high-stakes nature of foreign affairs, and rational action onbehalf of the nation in a dangerous world would be best advanced byexecutive action. The gist of Yoo's theory for a robust appreciation ofexecutive power is expressed in the following quotation from his book:

As Edward Corwin observed, the executive's advantages in foreign affairsinclude "the unity of office, its capacity for secrecy and dispatch, and itssuperior sources of information, to which should be added the fact that it isalways on hand and ready for action, whereas the houses of Congress are inadjournment much of the time.432

This power does not ebb and flow with the political tides, but finds itsorigins in the very creation of the executive. The Framers rejected thelegislative supremacy of the revolutionary state governments in favor ofa Presidency that would be independent of Congress, elected by thepeople, and possessed with speed, decision, and vigor to guide the nationthrough war and emergency. They did not carefully define and limit theexecutive power, as they did the legislative, because they understoodthat they could not see the future.433

The Yoo view rests on a historical, and in some ways functional,reconstruction of the separation of powers and the distinctiveness ofpowers reserved to the President.434 It also stresses the role of expandedpowers in the context of emergencies and war and underlines the factthat the lack of specification of presidential powers in the Constitutionshould not be read as a limitation, but a potential, exponential expansionof those powers.435 For example, if the President invokes his power ascommander in chief, what limits are there on the exercise of these powersthat may be exercised by the legislature or the courts. The Presidentmust determine what is required by military necessity, and to whatextent is his determination subject to review by the coordinate branchesof government.436 Some writers suggest that the Constitution represents

432. See id at 20.433. See generally JOHN YOO, CRISIS AND COMMAND: A HISTORY OF EXECUTIVE

POWER FROM GEORGE WASHINGTON TO GEORGE W. BUSH 1-52 (2009).434. Id.435. Id.436. Id.; see generally CHARLES AUSTIN BEARD, AN ECONOMIC INTERPRETATION OF

THE CONSTITUTION OF THE UNITED STATES (Transaction Publishers 1913); see generallyWooDROw WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES (TransactionPublishers 1908).

495


a more complex multi-branch framework of cooperation, collaboration,and guidance.4 37

G. Bruce Ackerman: Legislative Emergency Sovereignty

Professor Bruce Ackerman expresses concern about the authorityfoundations of the executive to conduct activities that are essentiallyextra-constitutional.4 38 The question put here is how a scholar committed tothe basic values of the Constitution can approach the problem of thepossible excesses of the extra-constitutional decision-making. In short,the events related to the terrorist attacks have served to weaken thefundamental Constitutional values that Americans cherish. The centralissue that Ackerman addresses is the claim of executive emergencysovereignty, which in general emerges as a temporary suspension of theConstitution, but the fear is that the temporary becomes a relativelypermanent fixture of government unless we can develop a constitutionalstrategy to better secure constitutional values and to restrain the claimsof emergency unaccountable sovereignty. 4 39 Ackerman suggests thefollowing as a fix to the problem of runaway sovereignty:

The first and most fundamental dimension focuses on an innovative system ofpolitical checks and balances, ***[including] constitutional mechanisms thatenable effective short-run responses without allowing states of emergency tobecome permanent fixtures.*** Given the formidable obstacle course presentedby Article V of the U.S. Constitution, my proposal is a nonstarter as a formalamendment. Nevertheless, much of the design could be introduced as a"framework statute" within the terms of the existing Constitution. Congresstook a first step in this direction in the 1970s when it passed the NationalEmergencies Act. But the experience under this Act demonstrates the needfor radical revision. 440

Professor Ackerman's concern is that once the State travels the road ofemergency jurisdiction as a justification for the preclusion of fundamentalconstitutional values, it is difficult to limit such constraints on theConstitution.4 4 1 The late Professor Anthony Mathews, an expert on thenational security law experience in South Africa, wrote an article titled

437. Deborah N. Pearlstein, The Form and Function in the National SecurityConstitution, 41 CoNN. L. REV. 1549, 1553-54 (2009).

438. See Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029,1031-32(2004).

439. Id; see generally BRUCE A. ACKERMAN, THE CASE AGAINST LAMEDUCKIMPEACHMENT (Seven Stories Press 1999); see also Bruce Ackerman & Neal Katyal, OurUnconventional Founding, 62 U. CHIC. L. REV. 475-573 (1995).

440. Supra note 438.441. Id.; see generally supra notes 438-39.

496



The Permanence of the Temporary, in which he identifies this problem.442

The problem with the enactment of such legislation is really the concernof the legislators about the politics of patriotism. When an appeal ismade for exceptional powers in a security context, it is usually justifiedby strident appeals to patriotism with the implicit assumption thatopposition or restraints on such claims to competence reflect an inadequateor lukewarm form of patriotic loyalty.443 For example, the far-reachingPatriot Act had not been read by most members of Congress, yet the fear ofvoting against the Act was a fear of voting against popularly understoodpatriotism. 444 We therefore do not believe that the Ackerman positionhas political traction in the real world of legislative politics. It is aposition that can work only if a multitude of constituencies and interestgroups with compelling media access can constrain the appeals to crasspatriotism and formulate a structure of public opinion that reflects maturejudgment that moderates destructive emotionalism. That is a tall order.

H. Laurence Tribe and Patrick Gudridge: The Supremacy ofLaw

Professors Tribe and Gudridge provide a considered response to theAckerman view that the last resort for the protection of fundamentalvalues in a state of emergency must rest within the Congress.445 In theirview, they believe that the substantial reliance on the legislative processrather than on the explicit expectations coded in the Constitutionconcedes too much to the legislative branch and too little to the cultureof constitutional prescription, application, and enforcement.446 In essence,Ackerman's theory of an emergency constitution whose protectionsare vested within the legislative branch suggests a concession that theConstitution itself has no political and legal efficacy. It essentiallyinvolves giving up on the Constitution and its practices as conventionallyunderstood. This is a grand bargain that Tribe and Gudridge believeshould be rejected because it represents the prospect that threatens us

442. See A.S. Mathews & R. C. Albino, The Permanence of the Temporary. AnExamination of the 90 and 180 Day Detention Laws, 83 S. AFR. L.J. 16 (1966).

443. Id.444. Id; see generally Michael T. McCarthy, USA Patriot Act, 39 HARV. J. ON LEGIS.

435 (2002).445. See Laurence H. Tribe & Patrick 0. Gudridge, Anti-Emergency Constitution, 113

YALE L.J. 1801 (2003-2004); see also Bruce Ackerman, This Is Not a War, 113 YALEL.J. 1871 (2003-2004).

446. Id.

497


with less vigilance about the government's encroachment on theConstitution in the interest of patriotism.447 They suggest, "the lessons ofhistory teach us [that] we had best be most on our guard" if Ackerman'sgrand bargain is acted upon.48 In the Tribe view, there is skepticism oflegislative sovereignty and its capacity to respect the Constitution in thecontext of a national security crisis. The Tribe view believes that thereshould be no compromising on the strength and institutions of legalculture to constrain the abuse of sovereign power under the Constitution.The implications of this view may suggest that in the context of nationalemergencies, sovereignty under the Constitution is inappropriate if itsidelines the legal profession and the judicial branch of government. 450

In this sense, it is implicit that sovereignty is a shared complex competencein peace or war between the executive, the legislative, and the judicialbranches of government.4 51

VII. CONTEMPORARY PROBLEMS IN THEORY AND PRACTICE

The meaning of sovereignty in the 16th century is obviously differentfrom its meaning in the 20th century. Although there is such an institutionas the Queen in Parliament, the central idea of sovereignty is reflected inthe idea of Parliamentary Sovereignty.4 52 The authority foundation ofsovereignty has shifted to the sovereignty of the people expressed intheir elected representatives. 453 The diverse and often partial meaningsattributed to the term sovereignty mean that its invocation is unclear andfraught with ambiguity. 454 Indeed, from the practice of decision-makersand the writings of eminent scholars, there are certain identifiable corereferences, which the term sovereignty evokes.4 5 5 For example, the termincludes a reference to the notion of a body politic, which is a complexidea of which the nation-State is simply one example; it includes a

447. Id448. Id449. Id; see also Laurence H. Tribe, Taking Text and Structure Seriously: Reflections

on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1221-1303 (1995); see generally LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES (HarvardUniv. Press 1985); see generally LAURENCE H. TRIBE, GOD SAVE THIS HONORABLE COURT:How THE CHOICE OF SUPREME COURT JUSTICES SHAPES OUR HISTORY (New York, RandomHouse 1985); see also Laurence H. Tribe, The Puzzling Persistence of Process-BasedConstitutional Theories, 89 Yale L.J. 1063-80 (1980).

450. Id451. Id.452. Id.453. Id.454. Thomas M. Franck, Legitimacy in the International System, 82 AM. J. INT'L L.

705, 705-06 (1988) (stressing the importance of international obligation and legitimacyas conditioning sovereign authority).

455. See generally supra notes 1 & 27.

498



reference to control or efficacy in political and legal processes; and itincludes an ambiguous reference to the idea of governance with either animplicit legitimacy or an authority component.456 These core designationshave been implicit in the many partial and incomplete references the termhas come to symbolize, such as Sovereignty as a personalized monarch(real or ritualized); as a symbol for absolute, unlimited control or power;as a symbol of political legitimacy; as a symbol of political authority; asa symbol of self-determined, national independence; as a symbol ofgovernance and constitutional order; as a criterion of jurisprudentialvalidation of all law (grundnorm, rule of recognition, sovereign); as asymbol of the juridical personality of Sovereign Equality; as a symbol of"recognition;" as a formal unit of a legal system; as a symbol of powers,immunities, or privileges; as a symbol of jurisdictional competence tomake and/or apply law; and as a symbol of basic governance competencies(constitutive process).4 57 The multitude of meanings attributable to thesovereignty idea reflects its usability in many diverse contexts of socialorganization. One of the most important of these contexts is the globalenvironment. The sovereignty issue was critical to understanding theconduct and abuses of the parties to the Second World War and itsaftermath.458 This background problem and the variability in the meaningof sovereignty serve as an important background for developmentsrelating to sovereignty in the twentieth century.459

A. Empirical Perspectives and Theories ofDecolonization

There is an alternative approach to clarifying the theory of thesovereignty idea. 460 This approach is more empirical and draws on thejurisprudence of the New Haven School of international law.46 1 This

456. Id.457. Winston P. Nagan, Strengthening Humanitarian Law: Sovereignty, International

Criminal Law and the Ad Hoc Tribunal for the Former Yugoslavia, 6 DUKE J. COMP. &INT'L L. 127, 144-45 (1995). The contemporary challenges relating to State sovereigntyinclude the idea of non intervention in the domestic jurisdiction of the state.Humanitarian law is essentially a law that stresses the idea of international concernswhich involves humanitarian values and which are a justification for establishing thejurisdictional predicate of international concern which therefore validates some form ofhumanitarian intervention.

458. See generally supra notes 162-63.459. Id.; see generally supra notes 1 & 27.460. Id.461. Id; see generally supra note 309; see also Janet Koven Levit, Bottom-up

International Lawmaking: Reflections on the New Haven School of International Law, 32

499


approach, which is rooted in the reality of the global social and powerprocesses, enerates a concern that this reality generates astonishingcomplexity. We therefore outline some of the components of thiscomplexity for understanding the idea of sovereignty and proceed to applynovel ideas of theory and method that are empirically grounded to clarifythe idea of sovereignty in the world community today. Distinguishedinternational law publicists recognize what they regard as the"[i]nescapability of the concept of sovereignty as a quality of the Stateunder present-day international law." 463 They also recognize it as a"fundamental principle of the law of nations.4 64 However, even thestrongest proponents of the positivist view of international law conditionedby sovereign states assert that international law strongly rejects theadmissibility of absolute sovereignty as the basic principle of internationallaw. Surveys of the writings of diverse authors indicate a clear repudiationof any absolutist notion of sovereignty implicit in the command theoryof law and its progeny.46 5 It will doubtless be recalled that Austin relegatedinternational law to the domain of positive morality, a dubious status itshared with constitutional law.466

Theory and practice concede certain flexibility about what aspects of467international and constitutional law are to be designated sovereign.

However, the criteria by which such practical designations are madeoften reflect levels of reification and porousness about what is and is notsovereign, and what effect and deference are in practice to be accordedsuch characterizations. The law of sovereign immunity is a goodexample of this proposition. 4 68 The reification of State behaviors labeled

YALE J. INT'L L. 393 (2007); see also Hari M. Osofsky, A Law and GeographyPerspective on the New Haven School, 32 YALE J. INT'L L. 421 (2007).

462. Id.463. MAREK STANISLAW KORWICZ, SOME PRESENT ASPECTS OF SOVEREIGNTY IN

INTERNATIONAL LAW 16-17 (1961). This study remains one of the leading internationallaw texts on the elucidation of sovereignty from a multitude of vantage points anddisciplines. See also Winston P. Nagan, International Criminal Law and the Ad HocTribunalfor Former Yugoslavia, 6 DUKE J. COMP. & INT'L L. 127 (1995-1996).

464. Id.465. A. LARSON & W. JENCKS, SOVEREIGNTY WITHIN THE LAW 463, 465 (1965)

(discussing the issue of sovereignty and international obligation).466. John Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED AND THE USES OF

THE STUDY OF JURISPRUDENCE 12, 140 (Isaiah Berlin, Stuart Hampshire & RichardWollheim eds.,1954) (explaining author's imperative theory of law founded on the ideaof an objective and identifiable sovereign as the source of all positive law); contra J.W.HARRIS, LEGAL PHILOSOPHIES 226-30 (1980). This book is based on Austin's lectureson the University of London. It spells out his imperative theory of law founded on theidea of an objective and identifiable sovereign as the source of all positive law.

467. See generally supra notes 1 & 27.468. Id.; see generally HAZEL Fox, THE LAW OF STATE IMMUNITY (Oxford Univ.

Press 2008).

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jure imperii gave ground in practice to State behaviors that could bejuridically classified as jure gestionis, or the competence of a domesticcourt or tribunal to treat a foreign sovereign State just like any otherlitigant.469 The act of State doctrine in U.S. practice has been similarlyeroded, including the implicit sovereignty assumptions that served toinsulate acts of sovereign states done within their own territories fromadjudication in the courts of other sovereign states. 470 The roots ofreification and porousness in modern international law practice andcustom are tied to the processes of decolonization and the expansion ofthe State sovereign system.471 The post World War II processes ofdecolonization penetrated, and later eroded, the claims of colonial powersthat their colonies fell within their sovereignty and were thus beyond thereach of international law concern.472 The key doctrine that eroded thecolonial sovereignty idea was the claim of indigenous political movementsto self-determination, which in post Cold War practice became a juscogens.473 In this context, the claim to self-determination simultaneouslydenied colonial sovereignty and affirmed sovereignty sustained by self-determination. 474 Latent in claims to self-determination was the idea ofsovereign independence. 475 The outcome of the decolonization self-determination process was a radical increase in internationally recognizedclaims to national State sovereignty. 476 However, vast numbers of these

469. Nagan, supra note 457, at 142 (providing an explanation to the importance ofstrengthening humanitarian law and human rights law, which is evident in light of therecourse to violence to resolve international and internal conflicts).

470. Id.471. Id.; see generally S.E. Merry, Colonial and Postcolonial Law, in The

Blackwell Companion to Law and Society, (A. Sarat ed., Blackwell Publishing Ltd,Oxford, UK. 2008); see also James Thuo Gathii, Neoliberalism, Colonialism andInternational Governance: Decentering the International Law of GovernmentalLegitimacy Governmental Illegitimacy in International Law by Brad R. Roth, 98 MICH.L. REV. 1996-2055 (2000) (2000 Survey of Books Related to the Law).

472. Id.; see generally supra notes 162-63.473. Id; see also Gerry J. Simpson, The Difusion of Sovereignty: Self-Determination in

the Post-Colonial Age, 32 STAN. J. INT'L L. 255 (1996).474. Id; see generally JOSHUA CASTELLINO, INTERNATIONAL LAW AND SELF-

DETERMINATION: THE INTERPLAY OF THE POLITICS OF TERRITORIAL POSSESSION WITHFORMULATIONS OF POST-COLONIAL 'NATIONAL' IDENTITY (Martinus Nijhoff Publishers2000); see also Ediberto Roman, Reconstructing Self-Determination: The Role ofCritical Theory in the Positivist International Law Paradigm, 53 U. OF MIAMI L. REV.(1999); Florida International University Legal Studies Research Paper No. 10-18 (July1, 1999).

475. Id.476. Id.

501


newly independent sovereign states were weak in terms of nationalintegration and foreign relations. Moreover, many new states were bothproducts and victims of cold war politics.477 This led to widespreadreification of sovereignty in vast numbers of newly independent states,justified under the internal affairs domestic jurisdiction clause of theU.N. Charter, Article 2(7).478 At the same time that states were claimingwidespread immunity from international duties and obligations (especiallyin the human rights sphere), these same states were claiming expandedsovereign rights as a form of compensation for the wrongs of colonial-imperialist exploitation and hegemony.479

B. The United Nations and the International Criminal Justice

The term "sovereignty" in the U.N. Charter is most visible in thecontext of sovereign equality. 4 80 Outside this context, the term is rarelyused in the text of the Charter. Indeed, Charter Article 2.7 uses the term"domestic jurisdiction" as a precept that seems intentionally less inclusivethan the term "sovereign" suggests. 481 The U.N. Charter is part of aworld constitutional instrument. As a constitution, the Charter is theformal basis of an international rule of law. One of its primary purposesis to constrain sovereign behaviors inconsistent with its key precepts. Itwas in fact the United Nations Security Council, operating under theauthority of Chapter VII, that gave its backing to an internationalconstitutional innovation, the Tribunals for the former Yugoslavia andRwanda, even if that innovation is only an ad hoc one.4 82 On the otherhand, it is well known that the United Nations is going through a crisisof redefinition in the post-cold war era, and its credibility in the security

477. Id.; see also MICHAEL BARNETr, THE NEW UNITED NATIONS POLITICS OFPEACE: FROM JURIDICAL SOVEREIGNTY TO EMPIRICAL SOVEREIGNTY GLOBAL GOVERNANCE,Vol. 1, No. 1, at 79-97 (1995).

478. Id.; see U.N. Charter art. 2, para. 7. This section shifts the focus from theanalytical and normative to the empirical. It provides a short overview of continuingproblems in exploring the nature of sovereignty and why an empirical approach mayadvance around the standing of the sovereignty idea. U.N. Charter Article 2.7 is theCharter's reference to sovereignty. However, it avoids the term. It stipulates thatnothing in the Charter authorizes the U.N. to intervene in matters which are "essentiallywithin the domestic jurisdiction of any State."

479. Id.480. Id.481. Id.482. Robert Marquand, U.S. Must Support War Crimes Prosecution, CHRISTIAN SCI.

MONITOR (1994) (stating that at the moment it was well known that the United Nationswas going through a crisis of post-cold war era redefinition about how the credibility inits security and peace-protecting arena was severely tarnished).

502



and peace-protecting arena has been severely tarnished.48 3 UnitedNations officials have been quick to project blame onto thesovereignty aspect of international power. They hold that stripped of allthe trimmings, the United Nations serves as a directorate of states. Ifthis is the reality, then two of the most important premises built into theCharter may be severely compromised. We refer to use of the "people" andthe "individual" as important constraints and components of internationallegal order. The crisis that the United Nations faces is not simplyfocused on the legal and policy dimensions of its constitutionalarchitecture in the post-cold war era. Rather, the situation the UnitedNations finds itself in raises the important issue of international publicopinion regarding the organization. That opinion is an authority basecrucial to maintaining the effective role and function of the organization.

C. Nuremberg and Individual Responsibility

The work of Fogelson gives a good explanation of why the war crimestrials in Nuremberg and Tokyo represent the most remarkable exceptionto the decentralized character of international criminal law.484 The greathistoric question about Nuremberg is whether it was an aberration, orwhether it represents a sufficiently strong institutional expression of theinternational rule of law in action such that the process of criminaljustice it created will become central to an improved world order.Indeed, a central policy feature of Nuremberg was the ancient functionof the law of preventive politics. In this sense, the law serves as arestraint on unlimited decisional competence because it requires someminimal responsibility and accountability for decisions. The NurembergTribunal held the agents of State decision-making personally responsiblefor crimes against peace, war crimes, and crimes against humanity.4 85

483. Barbara Crossette, U.N. Finds Skepticism Is Eroding the Hope That Is ItsFoundation, N.Y. TIMES, June 25, 1995, at I (quoting Indiana Representative Lee H.Hamilton in 1991 regarding the relationship between the role of the United Nations andUnited States policy. He stated that notions of threats to American independence ofaction are important issues to Americans: "In some groups of Americans, there is adistinct fear of loss of U.S. sovereignty to the U.N.").

484. Steven Fogelson, The Nuremberg Legacy: An Unfulfilled Promise, 63 S. CAL.L. REv. 833, 853 (1990). The critics of Nuremberg in the United States included RobertTaft and Norman Thomas.

485. R.H. JACKSON, THE NUREMBERG CASE (1971). Prosecutor Jackson declaredthat the trial in the eyes of the world were to be candidly faced before getting intoevidence considerations because the record on which those defendants were to be judged

503


These transgressions were not only international legal wrongs, but alsopunishable through the ascription of personal responsibility by criminallaw sanctions.486 The message of Nuremberg is clear; those who authorizedand committed crimes against the peace, war crimes, and humanitariancrimes would be personally responsible for those crimes and would bemade to suffer the consequences of their conduct.4 87 To hold theperpetrators of these proscribed forms of conduct accountable signifiesthat terrible things cannot be done to people without a resultingmeaningful international sense of responsibility. Nuremberg's detractorshave attacked it on two grounds: it was seen to represent the victors' justice,and it was thought to compromise the nulla poena principle. These arenot the strongest objections to the Nuremberg process. The real objectionsto Nuremberg are tied to sovereignty issues. 4 88 First, Nuremberg madethe sovereign State and its officials subject to the international rule oflaw. This was precisely the point that U.S. Secretary of War Henry Stimsonhad in mind when he lent his weight to the idea of trying the Nazi warcriminals. At the core of his thinking was the idea of a crime against thepeace as part of the indictment. Second, Nuremberg permitted penetrationof the veil of sovereignty in order to identify the concrete agents of decisionwho were responsible for criminal behavior. From an international lawperspective, the idea that individuals could be directly responsible underinternational law subverted a cardinal tenet of the positivist conceptionof international law.

was to be the record on which history will judge them in the future; see also W.J. BOSCH,JUDGMENT ON NUREMBERG: AMERICAN ATTITUDES TOWARDS THE MAJOR GERMAN WAR-CRIME TRIALS (1970). Critics of Nuremberg in the United States included Robert Taftand Norman Thomas. The problem with the argument of victors' justice is that it ignoresthe decentralized character of the international constitutive process, and arguesessentially that because there is no central, neutral authority, war crimes must beconsigned to a legal vacuum. Victors' justice is an aspect of the principle ofjurisdictionby necessity.

486. See generally STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FORHUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY(New York: Oxford Univ. Press, 2d ed. 2001); see generally LYAL S. SUNGA,INDIVIDUAL RESPONSIBILITY IN INTERNATIONAL LAW FOR SERIOUS HUMAN RIGHTSVIOLATIONS (Martinus Nijhoff Publishers (1992); see generally Affirmation of thePrinciples of International Law recognized in the Charter of the Nuremberg Tribunal,G.A. Res. 95(1), U.N. GAOR, 1st Sess., at 188, U.N. Doc. A/236 (1947). This resolutionsought to extinguish any lingering doubts concerning the legality of the NurembergTrials.

487. Id.488. B.F. SMITH, THE ROAD To NUREMBERG 46 (1981). Smith notes that Lord

Simon prepared a draft advocating summary execution of high-ranking Nazis with anumber of legal and political arguments to show the trials were inappropriate because theMoscow Declaration contentions implied that the problem would be dealt withpolitically, not judicially and that the best thing to do was simply to shoot a handful ofthe top Nazi leaders.

504



D. The Nuremberg Principles

If we view the operational state of international criminal law asconstitutionally allocated to sovereign states by custom, practice, andtreaty law, then Nuremberg was an important constitutional allocation ofcompetence to the international community and away from the sovereignnation state. This is the accurate juridical position which Nuremberg(and Tokyo) occupied in the global constitutive process. The Nuremburgtribunal confronted the dualism between sovereign versus personalresponsibility directly: "He who violates the laws of war cannot obtainimmunity while acting in pursuance of the authority of the State if theState in authorizing action moves outside its competence under InternationalLaw."4 89 Shortly after the Nuremberg decision, the United Nations GeneralAssembly, in a unanimous resolution, affirmed the Nuremberg principlesas accepted principles of international criminal law. Perhaps the mostconcise statement of the essential juridical meaning of the Nurembergprocess came from Justice Jackson:

[A]n Agreement with the four dominant powers of the earth, signed at Londonon August 8, 1945, which for the first time made explicit and unambiguouswhat was theretofore, as the Tribunal has declared, implicit in InternationalLaw, namely, that to prepare, incite, or wage a war of aggression, or to conspirewith others to do so, is a crime against international society, and that topersecute, oppress, or do violence to individuals or minorities on political,racial, or religious grounds in connection with such a war, or to exterminate,enslave, or deport civilian populations is an international crime, and that for thecommission of such crimes individuals are responsible."490

Nuremberg was technically based on an agreement between the Stateswho became the victors over the Axis Powers. 491 However, it should beacknowledged that even among the allies, there was no agreement on theprecise legal foundation of the proposed proceedings. Stalin, for example,

489. ROBERT H. JACKSON, THE NUREMBERG CASE at XIV-XV (1946) (citing R.H.JACKSON, FINAL REPORT TO THE PRESIDENT OF THE UNITED STATES ON THE NUREMBERGTRIALS (1947)). Jackson outlined the invasions of other countries and initiation of warsof aggression in violation of international law or treaties as one out of three categories ofcrimes that the defendants would be asked to account for. He regarded this crime ascentral to the entire conception of the trial.

490. Justice Jackson's Final Report to the President Concerning the Nurnberg WarCrimes Trial, 20 TEMP. L. Q. 338 (1946); see also The Nuremberg Decision, 6 F.R.D. 69,110 (1946). This was a major innovation in international law in which the victoriousallies held Nazi leaders criminally responsible for the crimes committed under the bannerof the Nazi State.

491. Id.; see also note 243.

505


thought that the execution of fifty-thousand SS Operatives would satisfythe demand for post-conflict justice. Churchill thought this was excessiveand speculated with a figure of 5,000 SS executions. From the record itappears that the English Legal establishments were opposed to the ideaof trying the sovereign or its representatives. Somehow, the Nurembergproposal went through negotiations and then the novel trials subjectingthe sovereigns officials to international criminal justice became a livingglobal institution of legal accountability. The Nuremberg Trials had tosolve important problems. For example, although the defendants wereon trial for unprecedented crimes, according to the Principles, they wereentitled to the idea of a fair trial with competent legal representation,meaning that they had certain fundamental rights granted by internationallegal order.492

VIII. CONSTITUTIVE PROCESS AND SOVEREIGNTY IN THEAFTERMATH OF NUREMBERG

A further question of the Nuremberg Trials, crucial to the defense, wasthat since they were acting under the authority of a sovereign State, theycould not be personally liable. Here Nuremberg made a major advancein legal thinking. Essentially the sovereign is an abstraction from reality.Behind the sovereign are the active human agents of decision-making.In that role they were legally accountable and appropriately prosecutedin the Nuremberg proceedings. The significant innovation here was torefute the idea that the sovereign, assuming traditional monarchicalpowers, could do no wrong. This version of sovereignty was subject toprinciples that today significantly inform the legitimacy of the conceptbecause they stress the ideas of transparency, responsibility, andaccountability and reject the idea that invoking the idea of sovereigntyprovides a cloud in which there is no responsible agent of decision. Thediscourse of international criminal law would be greatly improved if thereification and porousness of the term sovereignty is put into a moredisciplined theoretical focus that stresses the issue of constitutivecompetencies and interests, permitting analysis to clarify which interestsare sovereignty exclusive and which are sovereignty inclusive. Such afocus would do a great deal to clarify the reach, purpose and competenceto apply, prescribe and enforce what is called "international criminallaw."493 One of the major vices of the term "sovereignty" is the

492. Colin Warbrick, International Criminal Courts and Fair Trial, 3 J. ARMEDCONFLICT L. 45 (1998); see also David Harris, The Right to a Fair Trial in CriminalProceedings as a Human Right, 16 INT'L & CoMP. L. Q. 16, 352-78 (1967).

493. See generally Myres S. McDougal et al., supra note 43.

506



designative reference given to the analytically distinct concepts of authorityand control. The sovereignty idea in reified garb continues to perpetuatethe Austinian fallacy of collapsing authority and control, making itextremely difficult to properly appreciate how international criminal lawis rationally prescribed and applied. Indeed, a proper appreciation ofthese processes is crucial to developing a more rational approach to theinternational and constitutional allocation of competence in controllingand regulating criminal behaviors that require effective communityinterventions. The destructive impact of criminal behaviors on importantworld order values are serious enough that effective policing is requiredfrom local to global levels in the name of the world community as awhole. To strengthen the conceptual and doctrinal basis of humanitarianlaw we must purge the sovereignty precept of the conceptual andnormative confusion it generates and use more precision about the natureof the s ecific problems in which sovereignty is invoked as a sword or ashield .4

A clearer perception of the common and special interest of the termsovereignty sometimes seeks to promote, protect, or compromise aclearer delineation of the precise role in the constitutional order andpromise of the U.N. Charter. We must map and locate sovereignty moreprecisely within the context of global power and constitutive processes.As applied to the constitutional position of the ad hoc Tribunals, thepractical question is whether the common interest of sovereign entities isbetter protected by this constitutional innovation, or whether exclusiveparochial interests of a reified sovereignty precept undermine this effortat grounding international justice in its practical application. Somestates may view them as just an exception to the overriding imperium ofState sovereign competence over international criminal law. Other Stateparties have seen this constitutional innovation as an important step increating an independent, international criminal court. Contextual mapping,

494. See generally Myres S. McDougal et al., supra note 43; compare with MyresS. McDougal et al., The World Constitutive Process of Authoritative Decisions, in THEFUTURE OF THE INTERNATIONAL LEGAL ORDER 73 (Richard A. Falk & Cyril E. Blackeds., 1969), reprinted in MYREs MCDOUGAL & MICHAEL W. REISMAN, INTERNATIONALLAW ESSAYS 191 (1981). The founding members of Yale's New Haven Schoolexamined how governing hegemons manipulate social development and world publicorder. The technique of contextual mapping provides indicators that locate sovereigntywithin the interpenetrating regional, national, and global constitutive processes allowingan inquiring scholar to locate sovereignty within an appropriately comprehensive socialand power context.

507


a technique associated with the New Haven School, can be used toclarify the meaning and workings of sovereignty.495 The technique isbased on the principle that concepts and terms are better understoodwhen the contexts in which they are used are better understood. We arguethat contextual mapping shows that among and within nation-States, theconcept of sovereignty is used as an instrument by which to establishand maintain authority. We may define nation-States by four essentialcharacteristics. First, and according to U.N. SCOR 1948, traditionalinternational law requires a State to control a territorial base withdeterminable boundaries.4 96 Second, a State is required to control apopulation connected by solidarity, loyalty, and primary notions of groupaffiliation and identity. 4 9 7 Third, it is the related aspect of internalgovernance that requires a controlling internal power and competencies.498

The fourth traditional criterion is the requirement of a controlling powerto represent the State or territorially organized body politic in theinternational environment. However, the four traditional criteria obscurewhat is arguably the most vital building block of the "State"; howauthority is constituted. Contextual mapping clarifies that process.

A. The New Haven Approach: Empirical and Normative Integration

The New Haven School identifies three fundamental processes ofcontextual mapping: the social process, the power process, and the

495. See generally supra notes 25 and 461. (Consisting initially of Harold Lasswell,Myres McDougal, and their colleagues, the New Haven School seeks to illumine theworld political process by ascertaining and examining meaningful cultural, financial,psychological, and emblematic factors that lay beneath social behaviors. To track thisexamination, the New Haven School created a comprehensive contextual mappingsystem of human social structures.).

496. U.N. SCOR, 383d mtg. Supp. No. 128 at 9-12, U.N. Doc. S/P.V. 383 (Dec. 2,1948). Jessup, Phillip, U.S. Representative to the Security Council, remarked on thedefinition of a State to the U.N. that: "the reason for the rule that one of the necessaryattributes of a State is that it shall possess territory is that one cannot contemplate a Stateas a kind of disembodied spirit. Historically, the concept is one of insistence that theremust be some position of the earth's surface which its people inhabit and over which itsgovernment exercises authority."

497. George Simmel, Social Interaction as the Definition of the Group in Time andSpace, in INTRODUCTION TO THE SCIENCE OF SOCIOLOGY 348, 348 (Robert E. Park &Ernest W. Burgess eds., 3d ed. 1969). This emerging human element is the foundationof community norm generation.

498. Henry T. Wright, Toward an Explanation of the Origin of the State, inEXPLANATION OF PREHISTORIC CHANGE 215, 217 (James N. Hill ed., 1977) (citing RobertL. Carneiro, A Theory of the Origin of the State, 169 Sci. 733 (1970)). A State may becharacterized as "an autonomous territorial and political unit having a centralgovernment with coercive power over men and wealth." A State may be identified by itsability to defend itself against external international pressures or conflicts.

508



constitutive process.499 The social process is simply the activity of humanbeings seeking, through institutions, to promote their values. The powerprocess is a specialized aspect of the social process; it is the activity ofhuman beings pursuing power through institutions. The constitutiveprocess is an aspect of the power process; it is the process by whichinstitutions for the management of power are effectively and authoritativelydeveloped. The constitutive process is the creation of reasonablypredictable expectations about the allocation of fundamental decision-making authority. When the power process is mapped onto the constitutiveprocess, we begin to observe the emergence of authority in constitutingfundamental power arrangements, where authority is understood, incontradistinction from power, as having a normative element. To illustrate,any community exhibits contestations for power that may take the formof violent rebellions or revolution. The winners will seek to "constitute"or institutionalize their authority.500 They may have won a battle, butwinning the peace and stabilizing their power basis may require moreconcrete formulations of the "authoritative" and "controlling" aspects ofpower. Even if no clear winner emerges from the conflict, the contestingparties may see that stabilizing their claims and expectations aboutpower is in their mutual self-interest. This is because stabilizingexpectations about how the basic institutions of decision areestablished and continuously sustained are vital to the constitutionof power and its concurrent and subsequent "recognition." 50' From anempirical view, constitutions, written or otherwise, are nothing butcodified expectations of authority and stability in contradistinction to the

499. See generally HAROLD D. LASSWELL & MYRES S. McDOUGAL, supra note 176(Decisions which identify and characterize the different authoritative decision makers,specify and clarify basic community policies, establish appropriate structures ofauthority, allocate bases of power for sanctioning purposes, authorize procedures formaking the different kinds of decisions, and secure the continuous performance of all thedifferent kinds of decision functions necessary to making and administering generalcommunity policy.).

500. Harold G. Maier, Extraterritorial Jurisdiction at a Crossroads: An IntersectionBetween Public and Private International Law, 76 AM. J. INT'L L. 280 (1982).Notwithstanding this process of vying for sovereign power over a community, it hasbeen argued that at least to some extent, the beliefs of individual members of thatcommunity are reflected in each act of their sovereign ruler.

501. See MYRES MCDOUGAL & MICHAEL W. REISMAN, INTERNATIONAL LAW ESSAYS(1981) (discussing the three aspects of prescriptive communication that essentiallyconvey legal norms because they designate policy that both emanates from a source ofauthority and creates an expectation in the target audience that the policy content of thecommunication is intended to control).

509


prospect of continuous conflict over how power and authority are to beconstituted and exercised.502 Conflict and its polar opposite, collaboration,are present in all forms of social organization.50 3 Even when authority isprovided for in a formal constitution, there will always be conflictregarding the precise allocations of power and competence. Even whenthe high intensity violent conflict is contained, the settlement will befraught with contestations for power. Conflict cannot be banished fromhuman relations, but its form can change. Often, post-conflict settlementsgenerate situations of constructive conflict. Thus, some forms of conflictmay be socially beneficial.

B. The Map and Markers of the Global Social Process

The work of McDougal, Reisman, and Willard identifies the markersused to map the social process context.5 04 Lasswell and McDougalprovide an extensively developed map of the Social Process Context of

505 506Law.s0 s The first marker is the identification of participants. Theseinclude the governmental groups, including national and transnational;and the nongovernmental groups, which includes political parties,pressure groups and private associations; and finally individuals.50 7 Theseparticipants emerge with subjectivities, which are mark as perspectives,that include the markers of identity, claim, and expectation.0 s Claimingincludes demands for all the central values in social organization such aspower, respect, enlightenment, wealth, skill, well-being, skill, rectitude,

502. Walter 0. Weyrauch, The "Basic Law" or "Constitution" of a Small Group,27 J. Soc. ISSUEs 49, 56-58 (1971) (documenting an experiment in which severalBerkeley students were locked in a penthouse for three months. The focus of thisexperiment was the evolutive character of law).

503. W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AM.J. INT'L L. 83, 83 (1993). The U.N. Charter identifies authoritative decision-makers andprocedures by which decisions might be made because it articulates a framework ofpractices created to facilitate decisions in the interest of "[maintaining] peace andsecurity," which, as Professor Reisman puts it, "[requires] more and more cooperationbetween large and small states."

504. Myres S. McDougal, W. Michael Reisman & Andrew R. Willard, The WorldCommunity: A Planetary Social Process, 21 U.C. DAVIs L. REV. 807 (1988). This articleprovides the most comprehensive map of the Social Process Context of Law. From theperspective of the New Haven School, international lawmaking, or prescription is seen asa process of communication involving a communicator and a target audience. Thesubstance of this communication functions as signs or symbols of policy content,symbols of authority, and symbols of controlling intention.

505. See MYRES S. McDOUGAL & HAROLD D. LASSWELL, supra note 176 at 336.This source also provides an extensively developed map of the Social Process Context ofLaw.

506. Id.507. Id.508. Id.

510



and affection.50 9 All subjectivities implicated in human perspectives mayresult in claims generating problems, which require social responses.5 10

These problems related to subjectivities are located in identifiablesituational context 5 11-geographic, temporal, institutionalizationand crisis. 512 Each of these situational contexts will influence the efficacyand realism of the claims of perspective. In order to proceed with theclaims of perspective in different situations, the claimant must havesome access to bases of power to give the claim a sense of efficacy andrealism. 513 In law, it is the skill in the mobilization of authority, as baseof power, which is helpful. However, any value may not only be soughtfor its own sake but may serve as a base of power to facilitate therealization of a claimed perspective. 514 The participant mobilizing basesof power must still use available strategies to achieve the satisfaction ofdemand." In general, these strategies include the following: diplomatic,ideological, economic, and military. 16 In short, strategies may bepersuasive or coercive. The penultimate marker identifies the outcomesof interaction between perspectives, values, strategies, and institutions. 5 17

These outcomes reflect upon the production, conservation, distribution,and consumption of all values. 18 The final marker requires theidentification of the effects of social interaction on social process interms of the shaping and sharing of values. One of the major outcomesand effects of social interaction concerns specialized feature of the social

509. Id.510. Id.511. Id.512. Id513. Id.; See generally Myres S. McDougal et al., supra note 43 (A core philosophy

of the New Haven School is that in order to count as law, international law must have aprescriptive policy content, it must be accompanied by symbols or signs indicative ofwidespread community acceptance, and it must be accompanied by a conception thatsome institutionalized control exists to ensure that the prescribed law is real.).

514. Id.; see also Myres S. McDougal & Harold D. Lasswell, The Identification andAppraisal of Diverse Systems of Public Order, 53 AM. J. INT'L L. 1, 9 (1959). The NewHaven School is not concerned with formal structures of government. It instead remainsfocused on policy so that it can explore the interplay between law and the worldcommunity through the lens of social processes. The New Haven School explores theprocesses of decision-making with specific regard to the legal process, by which theauthors meant the making of authoritative and controlling decisions.

515. Id.516. Id.517. Id.518. Id.519. Id

511


process specialized to the production and distribution of power; theidentifiable power process.5 20

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LPalipels IL pVs IILSbo I.rmqi V.Ban %1.0OW lit Effst

ICG.q T .Da I.Gand r 1. D,=& MaIrtkes ot rihl - EPLnscKTen (W)oPr a P.ToPc i .nclesca1 cla t Psoveeig to

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and expectations, their bases of power, the situations in which they operate,their general strategies for action, and the basic outcomes and effects ofpolitically conditioned action.522 One of the major outcomes of the

process of effective power has been the creation and maintenance of theinstitutions of authoritative decision-making.523 Placing the concept of

520. Id.521. Id.522. Id.523. Id.; see also Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman,

The World Constitutive Process of Authoritative Decisions, in THE FUTURE OF THEINTERNATIONAL LEGAL ORDER (C. Black & R. Falk eds., 1969), reprinted in MYRES S.

McDOUGAL & W. MICHAEL REISMAN, INTERNATIONAL LAW ESSAYS: A SUPPLEMENT TO

INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE (1981). The founding members ofYale's New Haven School examined how governing hegemons manipulate socialdevelopment and world public order. Discusses three aspects of prescriptivecommunication that essentially convey legal norms because they designate policy that

512



sovereignty within the map of the social, power, and constitutive processes,we find that sovereignty reflects the allocation of fundamental decision-making competencies about the basic institutions of governance itself.524

Within a nation-State, it is the authorization and recognition of personsor institutions competent to make basic decisions about governing power atall levels. 525 On the international stage, the stabilization of expectationsin political bodies with effective control over populations, territorialbases, as well as over the instruments of internal governance and externalrecognition leads to the creation of sovereignty with independence andinternational legal personality. 526 The term "sovereignty," by itself, givesus no clues as to its creation, how it is maintained, its changing character, orhow it is terminated. The empirical focus of contextual mapping mayprovide a useful bridge between the different disciplines and culturalcontexts in which the term is used, often abused, and certainlymisunderstood.527 The sovereignty idea is a critical component of theprocesses by which authority and control are institutionalized in differentcontexts, from the Global Constitutional Process to the National and LocalConstitutional Processes.528 An important insight into both theory andthe practice of sovereignty is that a precise meaning is still elusive. Thismay reflect the tough reality that power at all levels is a contestedmatter.529 Additionally, the salience of authority is as contested as thenature of power.530 Whether this is a problem that may be solved byconceptual/analytical analysis or whether, as suggested by the theoristsof the New Haven approach, the approach should be empirical using the

both emanates from a source of authority and creates an expectation in the targetaudience that the policy content of the communication is intended to control.

524. Id.525. Id.526. Id.; see also Pieter H.F. BEKKER, THE LEGAL POSITION OF INTERGOVERNMENTAL

ORGANIZATIONS 74 (1994). Scholars disagree about the extent to which recognition isrequired to establish legal personality, or if legal personality can indeed existindependently of recognition. If legal personality can exist without recognition,recognition is transformed into a legal duty possessed by the state.

527. Id; see also MCDOUGAL & LASSWELL, supra note 176. They offer a configurativeconception of jurisprudence that is the end result of an authoritative decision-makingprocess. They argue that a scientifically grounded answer to any policy-orientedproblem can be reached that might promote the common interest to achieve a worldorder based on fundamental principles of human dignity. Scholars and policymakersregard their approach to decision-making as a rigorous one embedded in a social context.

528. Id.529. Id.530. Id.

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techniques of contextual mapping to secure a more precise contextuallydefined description and justification of the sovereignty concept, is amatter for future theoretical speculation.

According to McDougal and Reisman,3 expanding on Lasswell andKaplan,5 32 the global power process is an outcome of the global socialprocess, which generates claims about the shaping and the sharing of power.The relevant markers start with the marker that identifies Participants.Participants include groups that are governmental non state groups, i.e.the individual.3 These groups may be national or transnational. Theyinclude groups that are non-governmental, pressure groups as well as themyriad global and national associations of civil society. The next markerfocuses on the Power directed subjectivities of both groups and individualparticipants in the global power process. These subjectivities comprisethe Perspectives of claiming or demanding power to participate in theshaping and sharing of power and in the maintenance of the processes ofauthoritative decision-making. Perspectives also include claims toidentification that have power implications as well as claims to perspectivesof expectations that implicate the shaping and the sharing of power. Theactions implicating the perspectives of power occur in Arenas which arethe same as those marked in the social process. The next marker identifiesthe Basis of Power that the claimants and contestants for power maydeploy. They require that all values that the claimant has access to orcontrol over may be used as a base to advance the claim with regard theshaping and sharing of power. Power may be a base of power to getmore power. Wealth may be used to get power and all other values, such asrespect, enlightenment, health, and well-being. Affection and rectitudemay also be used as bases to enhance the power position. The next markerfocuses on the Strategies of the use of power which are usually strategiesof coercion or persuasion. They include at the global level the strategiesof diplomacy, ideology, economy and military values. The penultimatemarker is one that generates the process of decision-making since powercan only be deployed as a function of decision. The outcomes of thepower process will be decision and its functions which include intelligence,promotion, prescription, invocation, application, termination and appraisal.The final marker for a description of the power process lies in theidentification of its Effects on public order as well as the elements of

531. Id.; see also Myres S. McDOUGAL & W. MICHAEL REISMAN, THE WORLDPROCESS OF EFFECTIVE POWER: THE GLOBAL WAR SYSTEM, POWER AND POLICY IN QUESTOF LAW: ESSAYS IN HONOR OF EUGENE VICTOR RoSTOW (1985).

532. Id.; see also HAROLD D. LASSWELL & ABRAHAM KAPLAN, POWER AND SOCIETY: AFRAMEWORK FOR POLITICAL ENQUIRY (1950).

533. Id.; see also W Michael Reisman, Private Armies in a Global War System:Prologue to Decision, 14 VA. J. INT'L. L. 1 (1973).

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stability and change in it. This map is developed in greater detail inLasswell and McDougall.5 34

Partdcpant Prspiv Arrms Bassof Strregi Outomes Elcts

L GMu I. Dzards (Sansas (All L Diplmlic Dtiem I Cas=sprA G10ammu Tooricipatein Cannunity Valus) 2. Id il I. Inht cme f Puc Ordet(I)Ntierthl e t an d Process) 3 Ecnmic 2, Pomti 2 C ns in(2)Trnm nal shrng ofpot A. M4iiay 3. Piesring Patdp8. Nogovenatl For wistmes 4. I ng6(1) Pdeficl Parties opeess of S Appling(2) Presse GmTps Ambufitaive 6. Tmuniming(3) Glt ad dacidrt 7 Apprain\alfoni Civil Saidy 2. Idardification2. 1 Expectati 3 F onqc

D. Map and Markers of the Global Constitutive Process

The constitutive process is an outcome of the power process. 535 It is acontinuous process but it does not render irrelevant the similarlycontinuing process of conflict in accordance with the constitution. Thereis an intuitive, ongoing relationship between contestations for power andthe constituting and stabilizing of such contestations. The continuingconstitutive process shapes communication regarding conflict managementand collaboration to establish and maintain the basic political andjuridical institutions of effective and authoritative decision-making. 536

One of the most important outcomes of the power process is the patternsof communication regarding conflict and possible collaboration. Theunderstandings generated by power brokers in their contestations forpower frequently involve communications and understandings about thelimits, constitution, and uses of power for collaboration rather than

534. Id.; see also MYRES S. McDOUGAL & HAROLD D. LASSWELL, supra note 176 at147-77; see also MYRES S. McDOUGAL & HAROLD D. LASSWELL, JURISPRUDENCE FOR AFREE SOCIETY, VOL. 11, pp. 1439-1475 (1992) (A detailed development of the map of thepower process is provided in Appendix IV, titled The Community Power Process: AnOutline for Policy-Oriented Inquiry. Id. at 1439-88.).

535. For a summary of the map of the constitutive process, see MYRES S.MCDOUGAL & HAROLD D. LASSWELL, VOL. II, supra note 534, at 1475-88.

536. Id.; see generally Myres S. McDougal et al., supra note 43.

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conflict. From an observer's point of view, a central feature of what iscalled "constitutional law" is that it is a way of institutionalizingexpectations relating to the management of power in the basicinstitutions of authoritative and controlling decision-making.537 Theunderstandings that emerge from the power process reflect thedevelopment, however imperfect, of cultural forms that seek to constrainexcessive, destructive conflicts and structure conflicts productively.Practical frameworks of communication and collaboration are generated,and basic human expectations that, under scrutiny, may reveal a "living"constitutional arrangement where cultural expectations of howdecision-making is fundamentally interwoven with social organization areactually or behaviorally constitutionalized.538 This might happen without awritten constitution and still be an effective instrument of constitutiveauthority. Alternatively, the outcomes of social conflict, such as civilwar, anti-colonial wars, or agitation for self-determination, might lead tothe formulation of written expectations about the management of basicdecision-making competences in the political culture. In short, conflictsometimes provokes the creation of a written constitution. On theinternational stage, wars and multi-State conflicts have historicallystimulated the development of regional compacts and mutualunderstandings.5 39 Indeed, perhaps the clearest example yet of a globalcompact representing the parties' common interest is the U.N. Charter.One of the most important outcomes of the global constitutive andpower process is the creation of the sovereign State.

As indicated above, the constitutive process is an outcome of thepower process and the critical outcome of the power process is theprocess of decision-making according to power and decision function. 54 0

The constitutive process emerges from the understandings of the dominant

537. Id.; see also MYRES S. McDOUGAL & HAROLD D. LASSWELL, VOL. II, supranote 534, at 1489-1526 (THE APPLICATION OF CONSTITUTIVE PRESCRIPTION: AN ADDENDUM

TO JUSTICE CARDOZO, APPENDIX V) (examining the way on which sovereign constitutedauthority develops procedures for grounding value judgments in instances of particularapplication). These principles are applied to the challenges of sovereign decision-making implicating human rights decision-making.

538. Id.; see also MYRES S. MCDOUGAL & HAROLD D. LASSWELL, VOL. II, supranote 534, at 1527-64 (demonstrating the importance of sovereign authority in global publicorder developing principles of content and procedure for giving practical application tointernational human rights).

539. Id.; see also M.S. McDougal & H.D. Lasswell, The Identification andAppraisal of Diverse Systems ofPublic Order, 53 AM. J. INT'L L.1 (1959). The School'slead scholars suggest that international law is a "world constitutive process ofauthoritative decision" perhaps referring to existing legal regimes such as the U.N.Charter. The goal of international law, the School's founders argue, is the establishmentof world public order by instituting regimes of effective control and moving away fromexisting regimes of ineffective control and authority.

540. Id.

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[VoL. 13: 429, 2012] Sovereignty in Theory and PracticeSAN DIEGO INT'L LJ.

claimants to power. Those understandings reflect expectations abouthow decisions are to be authorized and allocated for the purpose ofvesting those decisions with a degree of "authorization." This is theconstitutive process. 541 The markers for the purpose of mapping theglobal constitutive process start with the marker of participation. Thismarker covers the same range of participants as the social process. Thecritical indicators of participation reflect under inclusivity of the processand the assignment of responsibility. The second marker touches on thesubjectivities of perspectives.543 The perspective of demand focuses onclaims that are directly toward the clarification of the common interestof the community and focuses on the degree of inclusivity or exclusivityinvolved in the process of clarifying the common interest. This markeralso requires a preference for inclusivity in the clarification of thecommon interest and the rejection of special interests redefining thecommunity interests. The perspectives of identification require anidentification with the entire community. The perspectives of expectationrequire that it be contextual, realistic, and rational. The perspectives ofexpectation also recognize that constitutive expectations are complementaryin character and therefore require some supplementation to strengthenand support fundamental community expectations about the constitutionof power.544

From the markers that touch on participants and their subjectivities(subjectivities if identification, demand and expectation) we now markthe arenas within which power condition participants interact.545 Lasswelland McDougal identified the arenas of the constitutive process, whichare socially important for the institutional and geographic reach.546 Atthe level of institutionalization, the constitutive process generatesinstitutions of decision that are legislative, judicial, executive, andadministrative. The reach of the constitutive process in geographicterms touches on the problems of the degree of centrality and the reachof authority to the periphery. 547 This process has an important temporal

541. Id. For a concise summary of the constitutive process and the overridingprinciples that provide guidance in understanding this process, see MYRES S. McDOUGAL& HAROLD D. LASSWELL, VoL. II, supra note 534, at 1131-54.

542. Id.543. Id.544. Id.545. Id.546. Id.547. Id.

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dimension, which may be random and occasional or sustained andcontinuous. The geographic and temporal arena of the constitutiveprocess is a crucial component of the territorially organized sovereignstate. Another important marker is the marker of crisis.54 8 Constitutiveprocess claims are claims about power and therefore represent theprospect of the clash of power and conflict. Decision-making in thiscontext has to account for the effects of crisis on decision-making. Acritical dimension of the constitutive process is the issue of access. Thequestion of whether access is open and or compulsory indicates a greatdeal about the nature and quality of the constitutional culture. The basesofpower are bases that reflect decision-making and its invocation thatare both authoritative and controlling. The strategies are essentially thesame as community process. Detailed procedures implicating specializedtypes of decision-making are an important part of the strategies of theconstitutive process. The penultimate marker refers to outcomes. Theoutcomes of constituting power in effect vest power with authority. Oneof the outcomes of constitutionalizing power and authority in a territoriallyorganized body politic is the outcome of sovereign competence. The lastmarker reflects on the effects. Clearly the constitutive process has importantconsequences for the system of public order. One of the importantoutcomes is the outcome of sovereign nation State competence. Thecritical question is whether the dominance of the sovereign nation Statewill endure from a global perspective.

548. Id

518



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